MISSISSIPPI LEGISLATURE

1999 Regular Session

To: Judiciary; Public Health and Welfare

By: Senator(s) Bean

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

SECTION 1. Section 43-19-101, Mississippi Code of 1972, is amended as follows:

43-19-101. (1) The following child support award guidelines shall be a rebuttable presumption in all judicial or administrative proceedings regarding the awarding or modifying of child support awards in this state:

Number Of Children Percentage Of Adjusted Gross Income

Due Support That Should Be Awarded For Support

1 19%

2 25%

3 27%

4 29%

5 or more 31%

(2) The guidelines provided for in subsection (1) of this section apply unless the judicial or administrative body awarding or modifying the child support award makes a written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under the criteria specified in Section 43-19-103.

(3) The amount of "adjusted gross income" as that term is used in subsection (1) of this section shall be calculated as follows:

(a) Determine gross income from all potential sources that may reasonably be expected to be available to the absent parent including, but not limited to, the following: wages and salary income; income from self employment; income from commissions; income from investments, including dividends, interest income and income on any trust account or property; absent parent's portion of any joint income of both parents; workers' compensation, disability, unemployment, annuity and retirement benefits, including an individual retirement account (IRA); any other payments made by any person, private entity, federal or state government or any unit of local government; alimony; any income earned from an interest in or from inherited property; any other form of earned income; and gross income shall exclude any monetary benefits derived from a second household, such as income of the absent parent's current spouse;

(b) Subtract the following legally mandated deductions:

(i) Federal, state and local taxes. Contributions to the payment of taxes over and beyond the actual liability for the taxable year shall not be considered a mandatory deduction;

(ii) Social Security contributions;

(iii) Retirement and disability contributions except any voluntary retirement and disability contributions;

(c) If the absent parent is subject to an existing court order for another child or children, subtract the amount of that court-ordered support;

(d) If the absent parent is also the biological parent of another child(ren) residing with him, then the court may subtract five percent (5%) from his gross income per child not to exceed twenty-five percent (25%) for five (5) or more children;

(e) Compute the total annual amount of adjusted gross income based on paragraphs (a) through (d), then divide this amount by twelve (12) to obtain the monthly amount of adjusted gross income.

Upon conclusion of the calculation of paragraphs (a) through (e), multiply the monthly amount of adjusted gross income by the appropriate percentage designated in subsection (1) to arrive at the amount of the monthly child support award.

(4) In cases in which the adjusted gross income as defined in this section is more than Seventy-five Thousand Dollars ($75,000.00) or less than Ten Thousand Dollars ($10,000.00), the court shall make a written finding in the record as to whether or not the application of the guidelines established in this section is reasonable.

SECTION 2. Section 43-19-46, Mississippi Code of 1972, is amended as follows:

43-19-46. (1) Each employer, as defined in Section 93-11-101, Mississippi Code of 1972, doing business in Mississippi shall report to the Directory of New Hires within the Mississippi Department of Human Services:

(a) The hiring of any person who resides or works in this state to whom the employer anticipates paying wages; and

(b) The hiring or return to work of any employee who was laid off, furloughed, separated, granted leave without pay or was terminated from employment.

(2) Employers shall report, by mailing or by other means authorized by the Department of Human Services, a copy of the employee's W-4 form or its equivalent which will result in timely reporting. Each employer shall submit reports within fifteen (15) days of the hiring, rehiring or return to work of the employee. The report shall contain:

(a) The employee's name, address, Social Security number and the date of birth;

(b) The employer's name, address, and federal and state withholding tax identification numbers; * * *

(c) The date upon which the employee began or resumed employment, or is scheduled to begin or otherwise resume employment; and

(d) The employee's salary or wage information and whether or not the employee will have access to dependent health care coverage and the cost of said coverage if available.

(3) The department shall retain the information, which shall be forwarded to the federal registry of new hires.

(4) The Department of Human Services may operate the program, may enter into a mutual agreement with the Mississippi Employment Security Commission or the State Tax Commission, or both, for the operation of the Directory of New Hires Program, or the Department of Human Services may contract for such service, in which case the department shall maintain administrative control of the program.

(5) In cases in which an employer fails to report information, as required by this section, an administratively levied civil penalty in an amount not to exceed Five Hundred Dollars ($500.00) shall apply if the failure is the result of a conspiracy between the employer and employee to not supply the required report or to supply a false or incomplete report. The penalty shall otherwise not exceed Twenty-five Dollars ($25.00). Appeal shall be as provided in Section 43-19-58.

SECTION 3. Section 93-11-101, Mississippi Code of 1972, is amended as follows:

93-11-101. As used in Sections 93-11-101 through 93-11-119, the following words shall have the meaning ascribed to them herein unless the context clearly requires otherwise:

(a) "Order for support" means any order of the chancery, circuit, county or family court, which provides for periodic payment of funds for the support of a child, whether temporary or final, and includes any such order which provides for:

(i) Modification or resumption of, or payment of arrearage accrued under, a previously existing order; or

(ii) Reimbursement of support.

"Order for support" shall also mean:

(i) An order for support and maintenance of a spouse if a minor child is living with such spouse; or

(ii) In actions to which the Department of Human Services is a party, an order for support and maintenance of a spouse if a minor child is living with such spouse and such maintenance is collected in conjunction with child support.

(b) "Court" means the court that enters an order for withholding pursuant to Section 93-11-103(1).

(c) "Clerk of the court" means the clerk of the court that enters an order for withholding pursuant to Section 93-11-103(1).

(d) "Arrearage" means the total amount of unpaid support obligations.

(e) "Delinquency" means any payments that are ordered by any court to be paid by a noncustodial parent for the support of a child that have remained unpaid for at least thirty (30) days after payment is due. Delinquency shall also include payments that are ordered by any court to be paid for maintenance of a spouse in cases in which the department is collecting such support in conjunction with child support. * * *

(f) "Department" means the Mississippi Department of Human Services.

(g) "Employer" means a person who has control of the payment of wages to an individual.

(h) "Income" means any form of periodic 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 any person, private entity, federal or state government or any unit of local government, notwithstanding any other provisions of state or local law which limit or exempt income or the amount or percentage of income that can be withheld; provided, however, that income excludes:

(i) Any amounts required by law to be withheld, other than creditor claims, including, but not limited to, federal, state and local taxes, Social Security and other retirement and disability contributions;

(ii) Any amounts exempted by federal law;

(iii) Public assistance payments; and

(iv) Unemployment insurance benefits except as provided by law.

(i) "Obligor" means the individual who owes a duty to make payments under an order for support.

(j) "Obligee" means:

(i) An individual to whom a duty of support is or is alleged to be owed or in whose favor a support order has been issued or a judgment determining parentage has been rendered;

(ii) A state or political subdivision to which the rights under a duty of support or support order have been assigned or which independent claims based on financial assistance provided to an individual obligee; or

(iii) An individual seeking a judgment determining parentage of the individual's child.

(k) "Payor" means any payor of income to an obligor.

SECTION 4. Section 93-9-11, Mississippi Code of 1972, is amended as follows:

93-9-11. The father's liabilities for a child(ren) born out of wedlock for past education and necessary support and maintenance and other expenses may be calculated from the date of the child(ren)'s birth.

SECTION 5. Section 93-11-65, Mississippi Code of 1972, is amended as follows:

93-11-65. (1) In addition to the right to proceed under Section 93-5-23, Mississippi Code of 1972, and in addition to the remedy of habeas corpus in proper cases, and other existing remedies, the chancery court of the proper county shall have jurisdiction to entertain suits for the custody, care, support and maintenance of minor children and to hear and determine all such matters, and shall, if need be, require bond, sureties or other guarantee to secure any order for periodic payments for the maintenance or support of a child. In the event a legally responsible parent has health insurance available to him or her through an employer or organization that may extend benefits to the dependents of such parent, any order of support issued against such parent may require him or her to exercise the option of additional coverage in favor of such children as he or she is legally responsible to support. Proceedings may be brought by or against a resident or nonresident of the State of Mississippi, whether or not having the actual custody of minor children, for the purpose of judicially determining the legal custody of a child. All actions herein authorized may be brought in the county where the child is actually residing, or in the county of the residence of the party who has actual custody, or of the residence of the defendant. Process shall be had upon the parties as provided by law for process in person or by publication, if they be nonresidents of the state or residents of another jurisdiction or are not found therein after diligent search and inquiry or are unknown after diligent search and inquiry; provided that the court or chancellor in vacation may fix a date in termtime or in vacation to which process may be returnable and shall have power to proceed in termtime or vacation. Provided, however, that if the court shall find that both parties are fit and proper persons to have custody of the children, and that either party is able to adequately provide for the care and maintenance of the children, and that it would be to the best interest and welfare of the children, then any such child who shall have reached his twelfth birthday shall have the privilege of choosing the parent with whom he shall live.

(2) Provided further, that where the proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children in proportion to the relative financial ability of each.

(3) Whenever the court has ordered a party to make periodic payments for the maintenance or support of a child, but no bond, sureties or other guarantee has been required to secure such payments, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, the court may, upon petition of the person to whom such payments are owing, or such person's legal representative, enter an order requiring that bond, sureties or other security be given by the person obligated to make such payments, the amount and sufficiency of which shall be approved by the court. The obligor shall, as in other civil actions, be served with process and shall be entitled to a hearing in such case.

(4) When a charge of abuse or neglect of a child first arises in the course of a custody or maintenance action pending in the chancery court pursuant to this section, the chancery court may proceed with the investigation, hearing and determination of such abuse or neglect charge as a part of its hearing and determination of the custody or maintenance issue as between the parents, as provided in Section 43-21-151, notwithstanding the other provisions of the Youth Court Law. The proceedings in chancery court on the abuse or neglect charge shall be confidential in the same manner as provided in youth court proceedings, and the chancery court shall appoint a guardian ad litem in such cases, as provided under Section 43-21-121 for youth court proceedings, who shall be an attorney. Unless the chancery court's jurisdiction has been terminated, all disposition orders in such cases for placement with the Department of Human Services shall be reviewed by the court or designated authority at least annually to determine if continued placement with the department is in the best interest of the child or the public.

(5) (a) The duty of support of a child terminates upon the emancipation of the child. * * * Emancipation shall be effective upon the occurrence of one (1) of the following:

(i) Attains the age of twenty-one (21) years, or

(ii) Marries, or

(iii) Enlists in the military and enters active duty with the U.S. Armed Forces or full-time employment with the National Guard or Reserve.

(iv) Is convicted as an adult of a felony and sentenced to an adult correctional facility.

(b) However, the court may determine that emancipation has occurred and no prospective support obligation exists when the child:

(i) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or

(ii) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

Such a determination shall not be mad retroactive prior to the date of the hearing.

(6) In child support orders being enforced by the Department of Human Services where the current child support obligation has terminated and there exists an arrearage for unpaid child support, then an amount equal to the previous child support obligation shall continue to be paid by the obligor or withheld by the obligor's employer. Said payments shall be applied to the child support arrearage until paid in full without further order of the court.

SECTION 6. Section 93-5-23, Mississippi Code of 1972, is amended as follows:

93-5-23. (1) When a divorce shall be decreed from the bonds of matrimony, the court may, in its discretion, having regard to the circumstances of the parties and the nature of the case, as may seem equitable and just, make all orders touching the care, custody and maintenance of the children of the marriage, and also touching the maintenance and alimony of the wife or the husband, or any allowance to be made to her or him, and shall, if need be, require bond, sureties or other guarantee for the payment of the sum so allowed. Orders touching on the custody of the children of the marriage may be made in accordance with the provisions of Section 93-5-24. The court may afterwards, on petition, change the decree, and make from time to time such new decrees as the case may require. However, where proof shows that both parents have separate incomes or estates, the court may require that each parent contribute to the support and maintenance of the children of the marriage in proportion to the relative financial ability of each. In the event a legally responsible parent has health insurance available to him or her through an employer or organization that may extend benefits to the dependents of such parent, any order of support issued against such parent may require him or her to exercise the option of additional coverage in favor of such children as he or she is legally responsible to support.

(2) Whenever the court has ordered a party to make periodic payments for the maintenance or support of a child, but no bond, sureties or other guarantee has been required to secure such payments, and whenever such payments as have become due remain unpaid for a period of at least thirty (30) days, the court may, upon petition of the person to whom such payments are owing, or such person's legal representative, enter an order requiring that bond, sureties or other security be given by the person obligated to make such payments, the amount and sufficiency of which shall be approved by the court. The obligor shall, as in other civil actions, be served with process and shall be entitled to a hearing in such case.

(3) Whenever in any proceeding in the chancery court concerning the custody of a child a party alleges that the child whose custody is at issue has been the victim of sexual or physical abuse by the other party, the court may, on its own motion, grant a continuance in the custody proceeding only until such allegation has been investigated by the Department of Human Services. At the time of ordering such continuance the court may direct the party, and his attorney, making such allegation of child abuse to report in writing and provide all evidence touching on the allegation of abuse to the Department of Human Services. The Department of Human Services shall investigate such allegation and take such action as it deems appropriate and as provided in such cases under the Youth Court Law (being Chapter 21 of Title 43, Mississippi Code of 1972) or under the laws establishing family courts (being Chapter 23 of Title 43, Mississippi Code of 1972).

(4) If after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of child abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney's fees incurred by the defending party in responding to such allegation.

(5) The court may investigate, hear and make a determination in a custody action when a charge of abuse and/or neglect arises in the course of a custody action as provided in Section 43-21-151, and in such cases the court shall appoint a guardian ad litem for the child as provided under Section 43-21-121, who shall be an attorney. Unless the chancery court's jurisdiction has been terminated, all disposition orders in such cases for placement with the Department of Human Services shall be reviewed by the court or designated authority at least annually to determine if continued placement with the department is in the best interest of the child or public.

(6) (a) The duty of support of a child terminates upon the emancipation of the child. Emancipation shall be effective upon the occurrence of one (1) of the following:

(i) Attains the age of twenty-one (21) years, or

(ii) Marries, or

(iii) Enlists in the military and enters active duty with the U.S. Armed Forces or full-time employment with the National Guard or U.S. Armed Forces Reserve, or

(iv) Is convicted as an adult of a felony and sentenced to an adult correctional facility.

(b) However, the court may determine that emancipation has occurred and no prospective support obligation exists when the child:

(i) Discontinues full-time enrollment in school and obtains full-time employment prior to attaining the age of twenty-one (21) years, or

(ii) Voluntarily moves from the home of the custodial parent or guardian and establishes independent living arrangements and obtains full-time employment prior to attaining the age of twenty-one (21) years.

Such a determination shall not be made retroactive prior to the date of the hearing.

SECTION 7. Section 75-17-7, Mississippi Code of 1972, is amended as follows:

75-17-7. All judgments or decrees founded on any sale or contract shall bear interest at the same rate as the contract evidencing the debt on which the judgment or decree was rendered. All child support orders, by operation of law, shall bear interest at a rate of eight percent (8%) per annum. All other judgments or decrees shall bear interest at a per annum rate set by the judge hearing the complaint from a date determined by such judge to be fair but in no event prior to the filing of the complaint.

SECTION 8. The following provision shall be codified as Section 75-76-282, Mississippi Code of 1972:

75-76-282. (1) Gaming proceeds shall be subject to encumbrance for delinquent child support payments assessed by a court of competent jurisdiction or otherwise provided in Titles 43 and 93, Mississippi Code of 1972.

(2) Proceeds in amounts equal to or above amounts subject to taxation under applicable state or federal gaming laws shall be reported by the payor to the Mississippi Department of Human Services, Division of Child Support Enforcement pursuant to the provisions set forth herein.

(3) Initial inquiry shall be made by any entity or licensee engaging in business regulated by or similar to business regulated by the provisions of the Gaming Control Act. Such inquiry shall determine the existence and amount of any child support delinquency and may be made via telephone to a telephone number provided and maintained by the department, and shall be accessible twenty-four (24) hours, seven (7) days a week, or such other electronic media as may be agreed upon by the department and the payor.

(4) Initial inquiries pursuant to this section shall be made within twenty-four (24) hours.

(5) If it is determined that the payee has a child support delinquency, proceeds up to the full amount of the delinquency shall be withheld and disbursed to the department. Proceeds beyond the amount of the delinquency shall be delivered to the payee.

(6) The payee shall have available to him or her the opportunity to contest the accuracy of said payee's identity or the reported amount of the delinquency:

(a) The payee shall have the right to review of the department's claim of the proceeds. To request such review, the payee must contact the office of the department in the county in which the child support order is entered. Such contact must be made within five (5) business days from the date upon which the payee seeks payment of the proceeds from the payor.

(b) The department shall grant a review which shall occur within twenty-four (24) business hours if contact is made with the office by personal appearance, telephone or electronic medium. If contact is made by writing, such review shall occur within five (5) business days of receipt of such contact.

(c) The payee may contest the determination of the review by filing a petition with a court of competent jurisdiction.

(d) Throughout the review and determination processes, the proceeds shall be held by the department in an account of the department's choosing, and shall be delivered to the payee, should he or she prevail.

(e) Any administrative and legal fees incurred by the payor or the department throughout the procedures described herein or pursuant to such procedures shall be assessed to the payee in the event the proceeds are forwarded to the department.

(7) For purposes of this section:

(a) "Gaming proceeds" shall mean any monies paid in lump sum or otherwise to an individual from lotteries, games or gambling games as defined by Section 75-76-5(k), Mississippi Code of 1972, or games or gambling games as defined by Section 97-33-51, Mississippi Code of 1972.

(b) "Child support delinquency" shall have the same meaning as that given it in Section 93-11-101, Mississippi Code of 1972.

(c) "Payor" shall mean the individual, agency or entity, licensed or unlicensed, disbursing the gaming proceeds to the payee.

(d) "Payee" shall mean the gaming activity participant to whom the gaming proceeds are due.

(8) Failure by the payor or payee to comply with the provisions of this section shall subject the payor or payee to a fine of not less than One Thousand Dollars ($1,000.00)

(9) Notwithstanding any provision of this or any other section of the Mississippi Code of 1972, the Department of Human Services shall not be prohibited from entering into a contractual or other similar arrangement with any individual, agency, entity or payor conducting such games or gambling games in Mississippi as are addressed herein.

SECTION 9. Section 93-11-103, Mississippi Code of 1972, is amended as follows:

93-11-103. (1) Child support orders enforced by Department of Human Services. Upon entry of any order for support by a court of this state where the custodial parent is a recipient of services under Title IV-D of the federal Social Security Act, 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 such orders for support issued prior to October 1, 1996, shall, by operation of law, be amended to conform with the provisions contained herein. All such orders for support issued shall:

(a) 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 any additional amount for delinquency specified in any order if accompanied by an affidavit of accounting, a notarized record of overdue payments or an attested judgment for delinquency or contempt. Any person who willfully and knowingly files a false affidavit, record or judgment shall be subject to a fine of not more than One Thousand Dollars ($1,000.00).

Orders that are being enforced by the child support unit and which were issued or modified after November 1, 1990, shall not be subject to immediate income withholding under this subsection (a) if one of the parties (i.e. noncustodial or custodial parent) demonstrates, and the court finds, that there is good cause not to require immediate income withholding, or (b) if both parties agree in writing to an alternative arrangement.

(2) Child support orders not enforced by the Department of Human Services. Upon entry of any order for support by a court of this state where the custodial parent is not a recipient of services under Title IV-D of the federal Social Security Act, issued or modified or found to be in arrears on or after January 1, 1994, the court entering such order shall enter a separate order for withholding which shall take effect immediately. Such orders shall not be subject to immediate income withholding under this subsection (a) if one of the parties (i.e. noncustodial or custodial parent) demonstrates, and the court finds, that there is good cause not to require immediate income withholding, or (b) if both parties agree in writing to an alternative arrangement.

(3) If a child support order is issued or modified in the state but is not subject to immediate income withholding, it automatically becomes so if the court finds that a support payment is thirty (30) days past due. If the support order were issued or modified in another state but is not subject to immediate income withholding, it becomes subject to income withholding on the date on which child support payments are at least one (1) month in arrears, or if it is earlier, the earliest of (a) the date as of which the noncustodial parent requests that withholding begin, (b) the date as of which the custodial parent requests that withholding begin, or (c) an earlier date chosen by the court.

(4) 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 Case 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. Nothing herein shall be construed to restrict the authority of the courts of this state from entering any order it deems appropriate to protect the rights of any parties involved.

(5) 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 twenty percent (20%) 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 U.S.C.A. 1673, as amended.

(6) In cases initiated or enforced by the Department of Human Services pursuant to Title IV-D of the federal Social Security Act, all such orders for withholding may 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, birth certificate certification fee, 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.

(7) At the time the order for withholding is entered, the clerk of the court shall provide copies of the order for withholding and the order for support to 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. The clerk of the court shall make copies available to the obligee and to the department or its local attorney.

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

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

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

(11) All existing orders for support shall become subject to additional withholding if arrearages occur, subject to court hearing and order. 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 delinquency has commenced;

(b) The information along with the required affidavit of accounting, notarized record of overdue payment or attested judgment of delinquency or contempt 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.

(12) An employer who complies with an income withholding notice that is regular on its face and which is accompanied by the required accounting affidavit, notarized record of overdue payments or attested judgment of delinquency or contempt shall not be subject to civil liability to any individual or agency for conduct in compliance with the notice.

SECTION 10. This act shall take effect and be in force from and after July 1, 1999.