Legislature(2003 - 2004)
05/01/2004 05:12 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 514-CHILD SUPPORT ENFORCEMENT/ CRIMES
CHAIR SEEKINS reminded members that public testimony on HB 514
had been closed and that he is trying to find out how
comfortable committee members are with the bill and what the
committee can do to make sure that the Child Support Enforcement
Division (CSED) "can nab the bad guys but not unnecessarily
make bad guys out of people who have, what we call in this, a
lawful excuse not to have paid child support." He noted that
Senator Ogan has had some legitimate concerns that the committee
is trying to address.
SENATOR OGAN expressed concern that under this bill, 15,000
people could become felons. He said he was considering amending
the prison bill to create a debtors' prison because the state
may need one if it is going to prosecute people under HB 514.
MS. SUE STANCLIFF, staff to Representative Pete Kott, sponsor of
HB 514, pointed out that a new work draft had been provided to
members, labeled version C.
CHAIR SEEKINS moved to adopt version C as the working document
before the committee.
SENATOR FRENCH objected for the purpose of an explanation of the
changes made in version C.
MS. STANCLIFF explained that version C incorporates the three
amendments previously adopted by the Senate Judiciary Committee.
It also contains a couple of conceptual amendments that are
corrective in nature. The first, on page 2, line 5, conforms to
one amendment the committee adopted to increase the debt amount
from $10,000 to $20,000. The second conceptual amendment is on
page 7, line 9: a comma was inserted following the word "year".
SENATOR OGAN moved the two conceptual amendments.
CHAIR SEEKINS designated the two conceptual amendments as
Amendment 4. There being no objection, Amendment 4 was adopted.
SENATOR FRENCH asked where the language came from in Section 12
on page 5 that pertains to the non-cash contribution.
MS. STANCLIFF said that was another change she planned to get to
and explained that language was incorporated from HB 176, which
is currently in the House Finance Committee. That language
allows non-custodial parents to support their children in ways
other than monetary payments, such as providing a winter supply
of firewood or a freezer full of meat. Those non-cash items
would be recognized as support. It is her understanding that
Representative Coghill or his staff spoke to members of the
Senate Judiciary Committee about that change.
SENATOR OGAN said he likes the concept but worries about the
ambiguous nature of valuing those items. He asked if the
Department of Revenue (DOR) could quantify what those items are
worth by regulation. He said if a father remodeled a room in an
ex-wife's home, the wife could get bids from other contractors
to quantify the worth of that project but the concept has many
pitfalls.
CHAIR SEEKINS noted the language says the two parties must
agree.
MS. STANCLIFF responded that Representative Coghill's staff
indicated that the value would be set through a written
agreement between the custodial and non-custodial parents and
that CSED would have a duty to make sure the value is
reasonable. However, the non-cash contributions would not apply
to accounts when the custodial parent is receiving public
assistance because when that occurs, CSED steps in to enforce
the collection of monetary support.
MS. LANDA BAILEY, special assistant, DOR, informed members that
CSED and the Department of Law (DOL) have worked out the
glitches in the process. She deferred to staff from those
agencies to explain that process.
MR. JOHN MALLONEE, acting director of CSED, told members when he
originally looked at this bill and spoke to Representative
Coghill's staff, it had CSED determining the value. That was
cause for concern. That value differs depending on location and
conditions and CSED has no way to monitor it. CSED felt it would
be much more beneficial to all concerned if there was an
agreement between the two parties as to the value of the item.
He noted if the non-cash item is to satisfy the debt between the
two parties and not with CSED, then those parties should be able
to determine the value.
CHAIR SEEKINS asked if a situation arose in which the non-
custodial parent changed a towel bar and was given a $20,000
credit, who the custodial parent would appeal to.
MR. MALLONEE said there would be no ability to appeal at that
point since the two parties would have agreed.
SENATOR FRENCH agreed the concept is a good one but said he has
severe concerns about how it will work in reality. He thought
that getting into the business of valuing non-cash contributions
would be a nightmare for CSED. He pointed out that the language
on page 6, lines 5-6 says the non-cash contribution could be
directed to a creditor of the child's custodian. He said if the
child's custodian owed a $500 bar tab, the non-custodial parent
could deliver moose meat directly to the bar.
MR. MALLONEE explained that the non-cash item must cover the
basic needs of the children, such as food, heat or housing. A
non-cash payment might be made to a creditor if the non-
custodial parent was unable to make a mortgage payment or pay a
heating bill, for example.
SENATOR FRENCH appreciated the explanation but expressed
continued concern about the difficulty of valuating non-cash
contributions.
SENATOR OGAN maintained that small claims courts are full of
cases and as a contractor, he would refuse to take payments in
advance because he felt waiting for the final payment motivated
him and assured that his client was satisfied. He noted jobs
that he bartered for were often not a priority for him. He
expressed concern that a custodial parent could agree in advance
to a non-cash contribution, such as a remodel project, and then
be dissatisfied with the work and CSED would have to get
involved.
CHAIR SEEKINS asked members if there was objection to adopting
version C.
SENATOR FRENCH noted that he preferred the prior version of the
bill [version X.A].
CHAIR SEEKINS asked Ms. Stancliff if the language change in
Section 12 is the only substantive change in version C.
MS. STANCLIFF verified that it is.
SENATOR FRENCH maintained his objection to adopting version C.
CHAIR SEEKINS asked Ms. Stancliff if the sponsor will have a big
"hiccup" if the committee continues to work on the prior
version.
MS. STANCLIFF said he would not; Section 12 provided an
opportunity to help people who do not have the ability to pay
cash and he was only trying to make a good bill better.
The motion to adopt version C failed with Senators French and
Seekins opposed, and Senator Ogan in favor.
[There was some confusion as to whether the committee was
working from version B or version X.A.]
SENATOR FRENCH moved to adopt version X.A as the working
document before the committee.
CHAIR SEEKINS noted without objection, the motion carried.
CHAIR SEEKINS referred to language on page 3, line 7, and asked
if the 24 months would be consecutive or cumulative.
MR. MALLONEE said it would be 24 consecutive months.
CHAIR SEEKINS moved to adopt Amendment [5], to insert the word
"consecutive" after the number "24" on page 3, line 7, and at
any other appropriate place in the bill [page 2, line 6]. With
no objection, the motion carried.
SENATOR OGAN moved to insert the word "intentionally" on page 1,
line 14, after the word "person" [Amendment 6].
CHAIR SEEKINS suggested placing the word "intentionally" on page
2, line 2, after the word "person" instead.
SENATOR FRENCH objected and said for the sake of consistency,
the word "knowingly" should be used.
SENATOR OGAN agreed with Senator French.
CHAIR SEEKINS suggested inserting the word "knowingly" after the
word "person" on page 2, line 2.
SENATOR OGAN agreed to that language and placement change.
CHAIR SEEKINS announced that without objection, Amendment [6]
was adopted.
Members discussed inserting "knowingly" on page 2, line 29 also,
but decided it was unnecessary.
SENATOR OGAN moved to give the legal drafter authority to make
corrections if he or she finds inconsistencies due to the
previous amendment (Amendment [7]).
MS. BAILEY pointed out that the word "knowingly" is on page 1,
line 9.
CHAIR SEEKINS clarified that without objection, conceptual
Amendment [7] was adopted.
CHAIR SEEKINS repeated that his concern about HB 514 is that
CSED go after the egregious offenders - people who deliberately,
knowingly, and intentionally live large on their children, not
the people who cannot make payments. He would prefer that the
bill contain language that says prior to being able to charge a
person with a felony, CSED have a consultation with that person,
but he was not willing to insert such language in the bill at
this point.
MS. BAILEY pointed out that Section 12 of version X.A is the
forgiveness provision. That provision provides a way for people
who are in arrears in their state-owed debt to resolve the
situation with CSED through a settlement process. She indicated
that even though 15,000 cases are potential felony cases, the
majority of those people simply are unable to pay and those
people cannot be charged with a felony under this provision
unless they have the ability to pay.
SENATOR OGAN said the wording in the bill is good and noble, but
many people do not report their income and work under the table.
Those people could claim they only earned minimal income and
apply for forgiveness and would be hard to catch. He asked if
the bill contains a provision that would help CSED to prove
fraud in those cases, because those are the people he would like
to charge with felonies.
CHAIR SEEKINS said if CSED could prove that a person
intentionally failed to provide support that would be fraud.
MS. BAILEY informed members that if Diane Wendlandt, Assistant
Attorney General, and the investigators at CSED find criminal
activity, they work hard to prosecute.
CHAIR SEEKINS asked if some prosecuting attorneys in the
district attorneys offices specialize in misdemeanors while
others specialize in felonies.
SENATOR FRENCH said generally the felony DWI cases fall to the
misdemeanor attorneys but one part-time assistant attorney
general handles all the CSED cases. He pointed out that the fact
that no one is willing to expand her work hours will constrain
this law.
MS. BAILEY pointed out that under the current statutory
structure, CSED can only charge people with misdemeanors and one
person in the district attorney's office works on those cases.
CHAIR SEEKINS asked the will of the committee.
SENATOR FRENCH moved SCS CSHB 514(JUD) to the next committee of
referral with its attached fiscal notes.
The motion carried with Senators French, Ogan and Chair Seekins
in favor.
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