BILL NUMBER: SB 1082 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 25, 2005
AMENDED IN SENATE APRIL 13, 2005
INTRODUCED BY Senators Morrow and Ducheny
(Principal coauthor: Senator Ashburn)
(Coauthors: Senators Cox, Denham, Dunn, Dutton,
Machado, Soto, and Speier)
(Coauthors: Assembly Members Cogdill, DeVore, Haynes, Shirley
Horton, Houston, Huff, La Malfa, La Suer, Leslie, Maze,
Mountjoy, Niello, Oropeza, Parra, Plescia, Sharon Runner, Ruskin,
Umberg, and Wyland)
FEBRUARY 22, 2005
An act to amend Sections 3651, 3653, and 17560 of, and to add
Sections 3047 and 17440 to, the Family Code, relating to child
support.
LEGISLATIVE COUNSEL'S DIGEST
SB 1082, as amended, Morrow. Child support: military reservists.
(1) Existing law sets forth provisions by which a support order
may be revised by the court and specifies that a support order may
not be modified or terminated as to an amount that accrued before
filing of a motion or an order to show cause to modify, except as
specified.
This bill would create an additional exception to this rule to
permit service members, activated to United States military duty or
National Guard service and deployed out of state, to request
modification of a support order, as specified. The bill would require
the service member to indicate the date of deployment and would
require the court, if possible, to schedule a hearing on the matter
prior to that date, or grant a stay of the motion or order to show
cause for modification consistent with certain federal timelines for
stays. This bill would impose additional requirements on a court that
fails to grant a discretionary stay and would provide that a service
member, who does not file a notice of activation of military service
and request to modify a support order prior to deployment out of
state, is not subject to penalties on the amount of child support
that would not have accrued if the order had been modified, as
specified. The bill would also require the Judicial Council to
develop any forms and procedures necessary to implement those
provisions.
The bill would also provide that a party's absence, relocation, or
failure to comply with custody and visitation orders is not, by
itself, sufficient to justify a modification of a custody or
visitation order if the reason for the absence, relocation, or
failure is the party's activation to military service and deployment
out of state.
(2) Existing law permits an order modifying or terminating a
support order to be made retroactive to the date of the filing of the
notice of motion or order to show cause to modify or terminate
, or to any subsequent date, except as specified.
This bill would provide that if an order modifying or terminating
a support order is entered due to a change in income resulting from
the activation to military service or National Guard duty and
deployment overseas for either the support obligor or support
obligee, the order shall be made retroactive in accordance with
specified requirements.
The bill would also require the Department of Child Support
Services to work with the military and National Guard to ensure that
information regarding the ability of service members to have support
orders modified based on a change of income is made readily available
to those service members. The bill would additionally require that
department to develop a form for completion by the service member to
allow the local child support agency to proceed with a motion for
modification of a support order without the service member being
required to appear. By placing new duties on local child support
agencies, the bill would impose a state-mandated local program.
(3) Existing law establishes an arrears collection enhancement
process pursuant to which the Department of Child Support Services
may accept offers in compromise of child support arrears and interest
accrued thereon owed to the state for reimbursement of aid paid
pursuant to the California Work Opportunity and Responsibility to
Kids Act (CalWORKs program).
This bill would provide that the acceptance of an offer in
compromise shall be deemed to be in the state's best interest with
regard to arrears that accrued as a result of a decrease in income
when an obligor was a reservist or member of the National Guard, was
activated to military service, and failed to modify the support order
to reflect the reduction in income. The bill would also specify that
those changes apply to all service members deployed out of state,
regardless of whether those members were deployed before or after the
effective date of the bill. The bill would also require the director
of that department to establish specified rules in accordance with
this provision.
(4) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3047 is added to the Family Code, to read:
3047. A party's absence, relocation, or failure to comply with
custody and visitation orders shall not, by itself, be sufficient to
justify a modification of a custody or visitation order if the reason
for the absence, relocation, or failure to comply is the party's
activation to military service and deployment out of state.
SEC. 2. Section 3651 of the Family Code is amended to read:
3651.
(a) Except as provided in subdivisions (c) and (d) and subject to
Article 3 (commencing with Section 3680) and Sections 3552, 3587, and
4004, a support order may be modified or terminated at any time as
the court determines to be necessary.
(b) Upon the filing of a supplemental complaint pursuant to
Section 2330.1, a child support order in the original proceeding may
be modified in conformity with the statewide uniform guideline for
child support to provide for the support of all of the children of
the same parents who were named in the initial and supplemental
pleadings, to consolidate arrearages and wage assignments for
children of the parties, and to consolidate orders for support.
(c) (1) Except as provided in paragraph (2) and subdivision (b), a
support order may not be modified or terminated as to an amount that
accrued before the date of the filing of the notice of motion or
order to show cause to modify or terminate.
(2) If a party to a support order is activated to United States
military duty or National Guard service and deployed out of state,
the service member may file and serve a notice of
activation of military service and request to modify a support order
, in lieu of a notice of motion or order to show cause, by
informing the court and the other party of the request to modify the
support order based on the change in circumstance. The service
member shall indicate the date of deployment, and if possible, the
court shall schedule the hearing prior to that date. If the court
cannot hear the matter prior to the date of deployment out of state
, and the service member complies with the conditions set forth
in the Servicemembers Civil Relief Act, Section 522 of the Appendix
of Title 50 of the United States Code , the court shall grant a
stay of the motion or order to show cause for modification
consistent with the timelines for stays pursuant to the federal
Servicemembers Civil Relief Act, set forth in Section 522 of the
Appendix of Title 50 of the United States Code
proceedings consistent with the time lines for stays set forth in
that section . If, after granting the mandatory stay required
by Section 522 of the Appendix of Title 50 of the United States Code,
the court fails to grant the discretionary stay described under the
law, it shall comply with the federal mandate to appoint counsel to
represent the interests of the deployed service member. The court may
not proceed with the motion or order to show cause
matter if it does not appoint counsel, unless
the service member is represented by other counsel. If the court
stays the proceeding until after the return of the service member,
the service member shall request the court to set the matter for
hearing within 60 days of return from deployment or the matter shall
be taken off calendar and the existing order may not be made
retroactive pursuant to subdivision (c) of Section 3653.
(3) A service member who does not file a notice of activation of
military service and request to modify a support order or order
to show cause or notice of motion prior to deployment out of
state nonetheless shall not be subject to penalties otherwise
authorized by Chapt er 5 (commencing with Section 4720) of
Part 5 on the amount of child support that would not have
accrued if the order had been modified pursuant to paragraph (2)
, absent a finding by the court of good cause. Any such finding
shall be stated on the record .
(4) Notwithstanding any other provision of law, no interest shall
accrue on that amount of a child support obligation that would not
have become due and owing if the activated service member modified
his or her support order upon activation to reflect the change in
income due to the activation. Upon a finding by the court that
good cause did not exist for the service member's failure to seek, or
delay in seeking, the modification, interest shall accrue as
otherwise allowed by law.
(d) An order for spousal support may not be modified or terminated
to the extent that a written agreement, or, if there is no written
agreement, an oral agreement entered into in open court between the
parties, specifically provides that the spousal support is not
subject to modification or termination.
(e) This section applies whether or not the support order is based
upon an agreement between the parties.
(f) This section is effective only with respect to a property
settlement agreement entered into on or after January 1, 1970, and
does not affect an agreement entered into before January 1, 1970, as
to which Chapter 1308 of the Statutes of 1967 shall apply.
(g) (1) The Judicial Council, no later than
90 days after the effective date of the act adding this section,
shall develop any forms and procedures necessary to implement
paragraph (2) of subdivision (c). The Judicial Council shall ensure
that all forms adopted pursuant to this section are in plain
language.
(2) The form developed by the Judicial Council, in addition to
other items the Judicial Council determines to be necessary or
appropriate, shall include the following:
(i) The date of deployment and all information relevant to the
determination of the amount of child support, including whether the
service member's employer will supplement the service member's income
during the deployment.
(ii) A notice informing the opposing party that, absent a finding
of good cause, the order will be made retroactive to the date of
service of the form or the date of deployment, whichever is later.
(iii) Notice that the requesting party must notify the court and
the other party upon return from military duty and seek to bring any
unresolved request for modification to hearing within 60 days of
return, or else lose the right to modify the order pursuant to this
section.
SEC. 3. Section 3653 of the Family Code is amended to read:
3653.
(a) An order modifying or terminating a support order may be made
retroactive to the date of the filing of the notice of motion or
order to show cause to modify or terminate, or to any subsequent
date, except as provided in subdivision (b) or by federal law (42
U.S.C. Sec. 666(a)(9)).
(b) If an order modifying or terminating a support order is
entered due to the unemployment of either the support obligor or the
support obligee, the order shall be made retroactive to the later of
the date of the service on the opposing party of the notice of motion
or order to show cause to modify or terminate or the date of
unemployment, subject to the notice requirements of federal law (42
U.S.C. Sec. 666(a)(9)), unless the court finds good cause not to make
the order retroactive and states its reasons on the record.
(c) If an order modifying or terminating a support order is
entered due to a change in income resulting from the activation to
United States military service or National Guard duty and deployment
out of state for either the support obligor or the support obligee,
the order shall be made retroactive to the later of the date of the
service on the opposing party of the notice of activation, notice of
motion, order to show cause to modify or terminate, or the date of
activation, subject to the notice requirements of federal law (42
U.S.C. Sec. 666(a)(9)), unless the court finds good cause not to make
the order retroactive and states its reasons on the record.
Good cause shall include, but not be limited to, a finding by the
court that the delay in seeking the modification was not reasonable
under the circumstances faced by the service member.
(d) If an order decreasing or terminating a support order is
entered retroactively pursuant to this section, the support obligor
may be entitled to, and the support obligee may be ordered to repay,
according to the terms specified in the order, any amounts previously
paid by the support obligor pursuant to the prior order that are in
excess of the amounts due pursuant to the retroactive order. The
court may order that the repayment by the support obligee shall be
made over any period of time and in any manner, including, but not
limited to, by an offset against future support payments or wage
assignment, as the court deems just and reasonable. In determining
whether to order a repayment, and in establishing the terms of
repayment, the court shall consider all of the following factors:
(1) The amount to be repaid.
(2) The duration of the support order prior to modification or
termination.
(3) The financial impact on the support obligee of any particular
method of repayment such as an offset against future support payments
or wage assignment.
(4) Any other facts or circumstances that the court deems
relevant.
SEC. 4. Section 17440 is added to the Family Code, to read:
17440.
(a) The Department of Child Support Services shall work with all
branches of the United States military and the National Guard to
ensure that information is made available regarding the rights and
abilities of activated service members to have their support orders
modified based on a change in income resulting from their activation,
or other change of circumstance affecting the child support
calculation, or to have a portion of their child support arrearages
compromised pursuant to Section 17560.
(b) No later than 90 days after the effective date of this
section, the department shall develop a form for completion by the
service member that will allow the local child support agency to
proceed with a motion for modification without the service member
being required to appear. The form shall contain only the information
necessary for the local child support agency to proceed with the
motion.
(c) Within five business days of receipt of a properly completed
form, the local child support agency shall bring a motion to modify
the support order. The local child support agency shall bring the
motion if the change in circumstances would result in any change in
the dollar amount of the support order.
(d) The department shall work with the United States military to
have this form and the form developed pursuant to Section 3651
distributed at all mobilization stations or other appropriate
locations to ensure timely notification to all activated personnel of
their rights and responsibilities.
SEC. 5. Section 17560 of the Family Code is amended to read:
17560.
(a) The department shall create a program establishing an arrears
collection enhancement process pursuant to which the department may
accept offers in compromise of child support arrears and interest
accrued thereon owed to the state for reimbursement of aid paid
pursuant to Chapter 2 (commencing with Section 11200) of Part 3 of
Division 9 of the Welfare and Institutions Code. The program shall
operate uniformly across California and shall take into consideration
the needs of the children subject to the child support order and the
obligor's ability to pay.
(b) If the obligor owes current child support, the offer in
compromise shall require the obligor to be in compliance with the
current support order for a set period of time before any arrears and
interest accrued thereon may be compromised.
(c) Absent a finding of good cause, any offer in compromise
entered into pursuant to this section shall be rescinded, all
compromised liabilities shall be reestablished notwithstanding any
statute of limitations that otherwise may be applicable, and no
portion of the amount offered in compromise may be refunded, if
either of the following occurs:
(1) The department or local child support agency determines that
the obligor did any of the following acts regarding the offer in
compromise:
(A) Concealed from the department or local child support agency
any income, assets, or other property belonging to the obligor or any
reasonably anticipated receipt of income, assets, or other property.
(B) Intentionally received, withheld, destroyed, mutilated, or
falsified any information, document, or record, or intentionally made
any false statement, relating to the financial conditions of the
obligor.
(2) The obligor fails to comply with any of the terms and
conditions of the offer in compromise.
(d) Pursuant to subdivision (k) of Section 17406, in no event may
the administrator, director, or director's designee within the
department, accept an offer in compromise of any child support
arrears owed directly to the custodial party unless that party
consents to the offer in compromise in writing and participates in
the agreement. Prior to giving consent, the custodial party shall be
provided with a clear written explanation of the rights with respect
to child support arrears owed to the custodial party and the
compromise thereof.
(e) Subject to the requirements of this section, the director may
delegate to the administrator of a local child support agency the
authority to compromise an amount of child support arrears that does
not exceed five thousand dollars ($5,000). Only the director or his
or her designee may compromise child support arrears in excess of
five thousand dollars ($5,000).
(f) For an amount to be compromised under this section, the
following conditions shall exist:
(1) (A) The administrator, director or director's designee within
the department determines that acceptance of an offer in compromise
is in the best interest of the state and that the compromise amount
equals or exceeds what the state can expect to collect for
reimbursement of aid paid pursuant to Chapter 2 (commencing with
Section 11200) of Part 3 of Division 9 of the Welfare and
Institutions Code in the absence of the compromise, based on the
obligor's ability to pay.
(B) Acceptance of an offer in compromise shall be deemed to be in
the best interest of the state , absent a finding of good cause
to the contrary, with regard to arrears that accrued as a
result of a decrease in income when an obligor was a reservist or
member of the National Guard, was activated to United States military
service, and failed to modify the support order to reflect the
reduction in income. Good cause to find that the compromise is
not in the best interest of the state shall include circumstances in
which the service member's failure to seek, or delay in seeking, the
modification were not reasonable under the circumstances faced by the
service member. The director, no later than 90 days after the
effective date of the act adding this subparagraph, shall establish
rules that compromise, at a minimum, the amount of support that would
not have accrued had the order been modified to reflect the reduced
income earned during the period of active military service.
(2) Any other terms and conditions that the director establishes
that may include, but may not be limited to, paying current support
in a timely manner, making lump sum payments, and paying arrears in
exchange for compromise of interest owed.
(3) The obligor shall provide evidence of income and assets,
including, but not limited to, wage stubs, tax returns, and bank
statements and establish all of the following:
(A) That the amount set forth in the offer in compromise of
arrears owed is the most that can be expected to be paid or collected
from the obligor's present assets or income.
(B) That the obligor does not have reasonable prospects of
acquiring increased income or assets that would enable the obligor to
satisfy a greater amount of the child support arrears than the
amount offered, within a reasonable period of time.
(C) That the obligor has not withheld payment of child support in
anticipation of the offers in compromise program.
(g) A determination by the administrator, director or the director'
s designee within the department that it would not be in the best
interest of the state to accept an offer in compromise in
satisfaction of child support arrears shall be final and not subject
to the provisions of Chapter 5 (commencing with Section 17800) of
Division 17, or subject to judicial review.
(h) Any offer in compromise entered into pursuant to this section
shall be filed with the appropriate court. The local child support
agency shall notify the court if the compromise is rescinded pursuant
to subdivision (c).
(i) Any compromise of child support arrears pursuant to this
section shall maximize to the greatest extent possible the state's
share of the federal performance incentives paid pursuant to the
Child Support Performance and Incentive Act of 1998 and shall comply
with federal law.
(j) The department shall ensure uniform application of this
section across the state.
(k) The department shall consult with the Franchise Tax Board in
the development of the program established pursuant to this section.
(l) The department shall report to the Legislature on the results
of the program established pursuant to this section no later than
June 30, 2006.
(m) This section shall remain in effect only until January 1,
2007, and as of that date is repealed unless a later enacted statute,
that is enacted before January 1, 2007, deletes or extends that
date.
SEC. 6.
The amendments to Section 17560 of the Family Code made by this
act shall apply to all service members deployed out of state,
regardless of whether that deployment occurred before or after the
effective date of this act.
SEC. 7.
If the Commission on State Mandates determines that this act
contains costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part
7 (commencing with Section 17500) of Division 4 of Title 2 of the
Government Code.