BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 1727 (Silva)
As Amended March 15, 2012
Hearing Date: June 12, 2012
Fiscal: No
Urgency: No
NR
SUBJECT
Support Orders: Termination
DESCRIPTION
This bill would allow a support obligor to seek ex parte relief
to terminate a wage assignment for support if past due support
has been paid in full, including any interest due, if any
following conditions exist: (1) the death or remarriage of the
spouse; (2) the death or emancipation of the child; (3) a
previous stay of wage assignment that was improperly terminated
as specified; or (4) where an employer or the child support
agency has been unable to deliver the support payments for at
least six months due to the obligee's failure to notify them of
his or her change of address.
BACKGROUND
Existing law provides that the death or remarriage of a
supported spouse terminates a support order. Likewise, the
death or emancipation of a supported child terminates a support
order. However, an employer cannot cease garnishing wages
pursuant to a valid wage assignment until the employer has
received a termination order from the court. Unauthorized
termination would subject the employer to civil penalties.
Current law allows an obligor (the person required to pay
support) to file a motion to terminate a wage assignment for
spousal or child support in specified situations, including when
a spouse has died or remarried, or a child has died or is
emancipated. This process can reportedly take months, during
which time wages will continue to be withheld from the obligor's
(more)
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pay. An ex parte action may shorten the time needed to obtain a
court order and terminate the wage assignment. Where statutory
law does not explicitly allow an obligor to petition for ex
parte relief to terminate a wage assignment, some courts allow
ex parte applications in these instances. This bill would
address this inconsistency by allowing for ex parte requests for
relief from support wage assignments in specified situations.
CHANGES TO EXISTING LAW
Existing law authorizes the court, in a judgment of dissolution
of marriage or legal separation, to order one party to pay
spousal support to the other party in an amount and for a
duration that the court deems just and reasonable based on
factors, including the standard of living established during the
marriage. (Fam. Code Sec. 4330.)
Existing law imposes on parents a duty to support unmarried
children under the age of 18 years. For a child who has
attained the age of 18 years, but is still a full-time high
school student and is not self-supporting, the duty of support
is extended until the time the child completes the 12th grade or
reaches 19 years of age, whichever occurs first. (Fam. Code
Sec. 3901.)
Existing law provides that except as otherwise agreed by the
parties in writing, the obligation of a party to pay spousal
support terminates upon the death of either party or the
remarriage of the supported party. (Fam. Code Sec. 4337.)
Existing law requires an employer to continue withholding and
forwarding support as required by the assignment until served
with a notice terminating the assignment order. (Fam. Code Sec.
5325.)
Existing law provides that an employer who willfully fails to
forward support pursuant to a valid assignment order is liable
to the obligee for the amount not paid, and the failure is
punishable as contempt. (Fam. Code Sec. 5241.)
Existing law provides that the court shall terminate a wage
assignment for collection of child or spousal support if all
past due support has been paid in full and one of the following
has occurred:
for spousal support, death or remarriage of the
supported spouse;
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for child support, death or emancipation of the
supported child;
there is good cause to terminate the assignment order,
as specified;
there is no longer a current support order;
a previous stay of the wage assignment was improperly
terminated, as specified; or
the employer or the child support agency has been unable
to deliver the support payments for at least six months due
to the obligee's failure to notify them of his or her
change of address. (Fam. Code Sec. 5240.)
Existing rules of court provides that a requesting party an ex
parte motion must submit the request in writing and must notify
all parties no later than 10:00 a.m. on the court day before the
ex parte appearance, absent a showing of exceptional
circumstances that justify a shorter time for notice. (Cal.
Rules of Court 3.1200 et seq.)
This bill would allow a support obligor to seek ex parte relief
to terminate a wage assignment for support if past due support
and interest have been paid in full, and any of the following
conditions exist:
with respect to spousal support, the death or remarriage
of the spouse;
with respect to child support, the death or emancipation
of the child;
absence of a current support order;
where a previous stay of wage assignment was improperly
terminated, as specified; or
the employer or the child support agency has been unable
to deliver the support payments for at least six months due
to the obligee's failure to notify them of his or her
change of address.
COMMENT
1.Stated need for the bill
In support of this bill, the author writes:
ÝFamily Code Section 5420] states that this termination Ýof a
wage assignment] shall occur 'upon the filing and service of
a motion and notice of motion by the obligor,' which some
courts have construed to mean that it doesn't permit relief
to be granted ex parte. The motion process can take weeks or
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months, during which time an employer cannot cease taking
funds from an employee pursuant to an assignment order? Thus,
where a court refuses to permit relief to be granted ex
parte, a substantial amount of money can be taken from the
obligor/supporting spouse's check, and perhaps even
transferred automatically into the bank account of the
deceased spouse, from which it is impossible or difficult to
get back.
2.Ex parte relief regarding the termination of wage order
assignments could expedite the process for terminating a wage
assignment in limited situations, thereby reducing harm to
certain petitioners
According to the author, there is often a lag between the
termination of a support order and the notice of termination of
a wage assignment served on employers. (Fam. Code Sec. 5325.)
In practice, even if an obligor files immediately with the court
for a termination of an assignment order, it may be months
before the court process is complete and the employer is served
with the proper paperwork releasing it from liability. (Fam.
Code Sec. 5241.) Over the course of this time, any funds
transferred to the obligee may be difficult or impossible to
return to the obligor. To address this problem, this bill allow
for an expedited process thereby limiting the funds that may be
transferred after a support order has been terminated.
Specifically, this bill would allow an obligor to seek ex parte
relief in terminating a wage assignment when a support order has
been terminated due to death, remarriage, a child reaching the
age of majority, or other limited circumstances.
A proper ex parte motion is generally regarded as addressing an
emergency and is therefore handled in a more expeditious manner
than other petitions before the court. The time period for
notice to the opposing party is shortened, typically to 24
hours, and the action may proceed even in the respondent's
absence. In his or her ex parte application a petitioner must
make a declaration, based on personal knowledge, of irreparable
harm, immediate danger, or another statutory basis for the court
to grant relief. (Cal. Rules of Court 3.1202.) The question of
irreparable injury or harm is a fact sensitive inquiry, and each
petitioner would need to justify how continued garnishment of
his or her wages would result in injury to him or her
specifically. Conceivably there are many situations where a
petitioner would be harmed from continued wage garnishment.
Medical or financial emergencies may arise, or an obligor may
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have made commitments in anticipation of a support order being
terminated when his child reached the age of majority. The
court would need to find each ex parte application sufficient,
and that the relief requested was justified before granting the
motion. Therefore, the availability of ex parte relief under
this bill is discretionary because a court may find, that based
on the facts, a standard hearing would be more appropriate.
Under existing law, there is no provision authorizing or
prohibiting ex parte motions regarding the termination of wage
orders. As a result, courts throughout the state take
inconsistent approaches to wage order terminations in the
limited situations discussed above. (See Background.) By
authorizing petitioners to request ex parte relief to terminate
a wage assignment, this bill would address potential delays and
promote consistent treatment of obligor's seeking relief after a
paid-in-full support order has been terminated.
3.This bill does not affect existing support obligations that
give rise to wage assignments
Under existing law, the court may, in a proceeding for a
dissolution of marriage or legal separation, order one party to
pay spousal support to the other party in an amount and for a
duration that the court deems just and reasonable. In
determining the amount of spousal support, the court will look
to a number of factors, including the standard of living
established during the marriage, the marketable skills of each
party, the supported party's present and future earning
capacity, the duration of the marriage, the ability of the
supported party to engage in gainful employment without
interfering unduly with the interests of dependent children.
(Fam. Code Secs. 4330 and 4320.) Parents also have a duty to
support unmarried children under the age of 18 years, as
specified. The obligation of a party to pay spousal or child
support terminates upon the death of either party, the
remarriage of the supported party, or the emancipation of the
child. (Fam. Code Secs. 3901 and 4337.) When an obligor's
wages have been garnished by court order in order to fulfill a
support obligation, this assignment cannot be terminated until
all interest and past due support are paid in full. (Fam. Code
Sec. 5240.)
By authorizing a petitioner to request ex part relief, this bill
would provide only an avenue to expedite the process by which an
employer or child support agency may stop withholding the wages
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of a former obligor. The requirements and circumstances for
requesting a termination of assignment would be the same as they
are under existing law: death, remarriage, emancipation,
termination of improper stay, or the inability of an employer or
child support agency to deliver support due to change of
address. An ex parte motion merely brings the issue of wage
assignment, once a support order has been terminated, before the
court in a shorter period of time by allowing a shorter period
for notice and allowing for the action to proceed without the
petitioner's presence. The opposing party must still be noticed
absent special circumstances, and the wage assignment would not
be eligible for termination if interest or past due support
remained outstanding, regardless of the death, remarriage, or
emancipation of the obligee.
Support : The Executive Committee of the Family Law Section of
the State Bar of California (FLEXCOM)
Opposition : None Known
HISTORY
Source : Conference of California Bar Associations
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 8, Noes 0)
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