Section 452.350

Title XXX DOMESTIC RELATIONS

Chapter 452

Effective - 28 Aug 2014   

  452.350.  Withholding of income, voluntary or court may order, when, when effective — hearing, when — employer, duties, liabilities, fee — discharge or discipline of employee because of a withholding notice prohibited, penalty — civil contempt proceeding authorized — amendment, termination and priorities of withholdings. — 1.  Until January 1, 1994, except for orders entered or modified in IV-D cases, each order for child support or maintenance entered or modified by the court pursuant to the authority of this chapter, or otherwise, shall include a provision notifying the person obligated to pay such support or maintenance that, upon application by the obligee or the Missouri family support division of the department of social services, the obligor's wages or other income shall be subject to withholding without further notice if the obligor becomes delinquent in maintenance or child support payments in an amount equal to one month's total support obligation.  The order shall also contain provisions notifying the obligor that:

  (1)  The withholding shall be for the current month's maintenance and support; and

  (2)  The withholding shall include an additional amount equal to fifty percent of one month's child support and maintenance to defray delinquent child support and maintenance, which additional withholding shall continue until the delinquency is paid in full.

  2.  For all orders entered or modified in IV-D cases, and effective January 1, 1994, for every order for child support or maintenance entered or modified by the court pursuant to the authority of this chapter, or otherwise, income withholding pursuant to this section shall be initiated on the effective date of the order, except that such withholding shall not commence with the effective date of the order in any case where:

  (1)  One of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding.  For purposes of this subdivision, any finding that there is good cause not to require immediate withholding must be based on, at least, a written determination and an explanation by the court that implementing immediate wage withholding would not be in the best interests of the child and proof of timely payments of previously ordered support in cases involving the modification of support orders; or

  (2)  A written agreement is reached between the parties that provides for an alternative arrangement.  

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If the income of an obligor is not withheld as of the effective date of the support order, pursuant to subdivision (1) or (2) of this subsection, or otherwise, such obligor's income shall become subject to withholding pursuant to this section without further exception on the date on which the obligor becomes delinquent in maintenance or child support payments in an amount equal to one month's total support obligation.  Such withholding shall be initiated in the manner provided in subsection 4 of this section.  All IV-D orders entered or modified by the court shall contain a provision notifying the obligor that he or she shall notify the family support division regarding the availability of medical insurance coverage through an employer or a group plan, provide the name of the insurance provider when coverage is available, and inform the division of any change in access to such insurance coverage.  Any income withheld pursuant to this section for a support order initially entered on or after October 1, 1999, shall be paid to the payment center pursuant to section 454.530.  Any order of the court entered on or after October 1, 1999, establishing the withholding for a support order as defined in section 454.460, or notice from the clerk issued on or after October 1, 1999, pursuant to this section for a support order shall require payment to the payment center pursuant to section 454.530.

  3.  The provisions of section 432.030 to the contrary notwithstanding, if income withholding has not been initiated on the effective date of the initial or modified order, the obligated party may execute a voluntary income assignment at any time, which assignment shall be filed with the court and shall take effect after service on the employer or other payer.

  4.  The circuit clerk, upon application of the obligee or the family support division, shall send, by certified mail, return receipt requested, a written notice to the employer or other payer listed on the application when the obligated party is subject to withholding pursuant to the child support order or subsection 2 of this section.  For orders entered or modified in cases known by the circuit clerk to be IV-D cases in which income withholding is to be initiated on the effective date of the order, and effective January 1, 1994, for all orders entered or modified by the court in which income withholding is to be initiated on the effective date of the order, the circuit clerk shall send such notice to the employer or other payer in the manner provided by this section at the time the order is entered without application of any party when an employer or other payer is identified to the circuit clerk by inclusion in the pleadings pursuant to section 452.312, or otherwise.  The notice of income withholding shall be prepared by the person entitled to support pursuant to the order, or the legal representative of that person, on a form prescribed by the court, and shall be presented to the clerk of the court at the time the order of support is entered.  The notice shall direct the employer or other payer to withhold each month an amount equal to one month's child support and maintenance until further notice from the court.  In the event of a delinquency in child support or maintenance payments in an amount equal to one month's total support obligation, the notice further shall direct the employer or other payer to withhold each month an additional amount equal to fifty percent of one month's child support and maintenance until the support delinquency is paid in full.  The notice shall also include a statement of exemptions which may apply to limit the portion of the obligated party's disposable earnings which are subject to the withholding pursuant to federal or state law and notify the obligor that the obligor may request a hearing and related information pursuant to this section.  The notice shall contain the Social Security number of the obligor if available.  The circuit clerk shall send a copy of this notice by regular mail to the last known address of the obligated party.  A notice issued pursuant to this section shall be binding on the employer or other payer, and successor employers and payers, two weeks after mailing, and shall continue until further order of the court or the family support division.  If the notice does not contain the Social Security number of the obligor, the employer or other payer shall not be liable for withholding from the incorrect obligor.  The obligated party may, within that two-week period, request a hearing on the issue of whether the withholding should take effect.  The withholding shall not be held in abeyance pending the outcome of the hearing.  The obligor may not obtain relief from the withholding by paying overdue support, if any.  The only basis for contesting the withholding is a mistake of fact.  For the purpose of this section, "mistake of fact" shall mean an error in the amount of arrearages, if applicable, or an error as to the identity of the obligor.  The court shall hold its hearing, enter its order disposing of all issues disputed by the obligated party, and notify the obligated party and the employer or other payer, within forty-five days of the date on which the withholding notice was sent to the employer.

  5.  For each payment the employer may charge a fee not to exceed six dollars per month, which shall be deducted from each obligor's moneys, income or periodic earnings, in addition to the amount deducted to meet the support or maintenance obligation subject to the limitations contained in the federal Consumer Credit Protection Act (15 U.S.C. Section 1673).

  6.  Upon termination of the obligor's employment with an employer upon whom a withholding notice has been served, the employer shall so notify the court in writing.  The employer shall also inform the court, in writing, as to the last known address of the obligor and the name and address of the obligor's new employer, if known.

  7.  Amounts withheld by the employer or other payer shall be transmitted, in accordance with the notice, within seven business days of the date that such amounts were payable to the obligated party.  For purposes of this section, "business day" means a day that state offices are open for regular business.  The employer or other payer shall, along with the amounts transmitted, provide the date each amount was withheld from each obligor.  If the employer or other payer is withholding amounts for more than one order, the employer or other payer may combine all such withholdings that are payable to the same circuit clerk or the family support payment center and transmit them as one payment, together with a separate list identifying the cases to which they apply.  The cases shall be identified by court case number, name of obligor, the obligor's Social Security number, the IV-D case number, if any, the amount withheld for each obligor, and the withholding date or dates for each obligor, to the extent that such information is known to the employer or other payer.  An employer or other payer who fails to honor a withholding notice pursuant to this section may be held in contempt of court and is liable to the obligee for the amount that should have been withheld.  Compliance by an employer or other payer with the withholding notice operates as a discharge of liability to the obligor as to that portion of the obligor's periodic earnings or other income so affected.

  8.  As used in this section, the term "employer" includes the state and its political subdivisions.

  9.  An employer shall not discharge or otherwise discipline, or refuse to hire, an employee as a result of a withholding notice issued pursuant to this section.  Any obligor who is aggrieved as a result of a violation of this subsection may bring a civil contempt proceeding against the employer by filing an appropriate motion in the cause of action from which the withholding notice issued.  If the court finds that the employer discharged, disciplined, or refused to hire the obligor as a result of the withholding notice, the court may order the employer to reinstate or hire the obligor, or rescind any wrongful disciplinary action.  If, after the entry of such an order, the employer refuses without good cause to comply with the court's order, or if the employer fails to comply with the withholding notice, the court may, after notice to the employer and a hearing, impose a fine against the employer, not to exceed five hundred dollars.  Proceeds of any such fine shall be distributed by the court to the county general revenue fund.

  10.  A withholding entered pursuant to this section may, upon motion of a party and for good cause shown, be amended by the court.  The clerk shall notify the employer of the amendment in the manner provided for in subsection 4 of this section.

  11.  The court, upon the motion of obligor and for good cause shown, may terminate the withholding, except that the withholding shall not be terminated for the sole reason that the obligor has fully paid past due child support and maintenance.

  12.  A withholding effected pursuant to this section shall have priority over any other legal process pursuant to state law against the same wages, except that where the other legal process is an order issued pursuant to this section or section 454.505, the processes shall run concurrently, up to applicable wage withholding limitations.  If concurrently running wage withholding processes for the collection of support obligations would cause the amounts withheld from the wages of the obligor to exceed applicable wage withholding limitations and includes a wage withholding from another state pursuant to section 454.932, the employer shall first satisfy current support obligations by dividing the amount available to be withheld among the orders on a pro rata basis using the percentages derived from the relationship each current support order amount has to the sum of all current child support obligations.  Thereafter, delinquencies shall be satisfied using the same pro rata distribution procedure used for distributing current support, up to the applicable limitation.  If concurrently running wage withholding processes for the collection of support obligations would cause the amounts withheld from the wages of the obligor to exceed applicable wage withholding limitations and does not include a wage withholding from another state pursuant to section 454.932, the employer shall withhold and pay to the payment center an amount equal to the wage withholding limitations.  The payment center shall first satisfy current support obligations by dividing the amount available to be withheld among the orders on a pro rata basis using the percentages derived from the relationship each current support order amount has to the sum of all current child support obligations.  Thereafter, arrearages shall be satisfied using the same pro rata distribution procedure used for distributing current support, up to the applicable limitation.

  13.  The remedy provided by this section applies to child support and maintenance orders entered prior to August 13, 1986, notwithstanding the absence of the notice to the obligor provided for in subsection 1 of this section, provided that prior notice from the circuit clerk to the obligor in the manner prescribed in subsection 5 of section 452.345 is given.

  14.  Notwithstanding any provisions of this section to the contrary, in a case in which support rights have been assigned to the state or in which the family support division is providing support enforcement services pursuant to section 454.425, the director of the family support division may amend or terminate a withholding order issued pursuant to this section, as provided in this subsection without further action of the court.  The director may amend or terminate a withholding order and issue an administrative withholding order pursuant to section 454.505 when the director determines that children for whom the support order applies are no longer entitled to support pursuant to section 452.340, when the support obligation otherwise ends and all arrearages are paid, when the support obligation is modified pursuant to section 454.500, or when the director enters an order that is approved by the court pursuant to section 454.496.  The director shall notify the employer and the circuit clerk of such amendment or termination.  The director's administrative withholding order or withholding termination order shall preempt and supersede any previous judicial withholding order issued pursuant to this or any other section.

  15.  For the purpose of this section, "income" means any periodic form of payment due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation benefits, disability benefits, payments pursuant to a pension or a retirement program and interest.

  16.  If the secretary of the Department of Health and Human Services promulgates a final standard format for an employer income withholding notice, the court shall use or require the use of such notice.

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(L. 1973 H.B. 315 § 11, A.L. 1982 S.B. 468, A.L. 1984 H.B. 1275, A.L. 1986 H.B. 1479, A.L. 1987 H.B. 484, A.L. 1990 S.B. 834, A.L. 1993 S.B. 253, A.L. 1994 H.B. 1491 & 1134, A.L. 1997 S.B. 361, A.L. 1999 S.B. 291, A.L. 2014 H.B. 1299 Revision)

(1980) Statute providing specifically for assignment of future wages upon order of court for purposes of enforcing order for maintenance created an exception to § 432.030 prohibiting the assignment of future wages. Brinley v. Karnes (A.), 595 W.W.2d 465.