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 
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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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