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) AB 1727 (Silva) Page 2 of ? 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; AB 1727 (Silva) Page 3 of ? 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 AB 1727 (Silva) Page 4 of ? 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 AB 1727 (Silva) Page 5 of ? 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 AB 1727 (Silva) Page 6 of ? 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) **************