Legislature(2003 - 2004)
04/23/2004 08:10 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= bill was previously heard/scheduled
HB 514-CHILD SUPPORT ENFORCEMENT/ CRIMES MR. JOHN MAIN, staff to Representative Pete Kott, sponsor of HB 514, said he was available to answer additional questions about HB 514. SENATOR ELLIS asked if Senator Ogan's concerns have been addressed. CHAIR SEEKINS announced a recess at 8:55 a.m. until Senator Ogan returned. He then reconvened the meeting at 9:00 a.m. SENATOR ELLIS explained that he and former Senator Drue Pearce co-chaired a family support task force several years ago. At that time, several families testified that they were upset with the state and judges and the ordering of child support and lack of modifications of those orders. Most of those testifying were men, many on their third or fourth marriages. He and Senator Pearce were amazed at what goes on in the real world. He asked whether the current child support system takes subsequent marriages into account when modifying child support orders. MR. JOHN MALLONEE, Acting Director of the Child Support Enforcement Division (CSED), said Court Rule 90.3 recognizes prior child support orders so, in a situation where there is a second child support order, the previous order is included in the computation of the new order. TAPE 04-51, SIDE B SENATOR ELLIS asked if the forgiveness provision might provide an incentive for people to get behind on child support payments, especially from the aspect of people with three or four families. MR. MALLONEE said one can strike a balance with the incentive provision because while an individual might try to elude enforcement to try to get a debt forgiven, CSED will be trying to use all enforcement options available during that process. That individual would have to work under the table or go underground to prevent CSED from collecting anything. He repeated the focus of the forgiveness provision will be on those people who get behind on child support payments but have the desire to pay their debt. SENATOR ELLIS asked whether the 20 percent forgiveness would only be for the state portion of the debt and whether that will impact the state portion of Temporary Assistance for Needy Families' (TANF) funds. MR. MALLONEE explained that the TANF block grant will be in place regardless of what CSED does. The forgiveness provision would impact the general fund. He noted that CSED collects the debt and splits that with the federal government. The state portion is deposited into the general fund. SENATOR ELLIS affirmed that no families will be forced to forego TANF funds because CSED will be forgiving 20 percent of the state obligation of child support. MR. MALLONEE said that is correct. MS. LANDA BAILY, special assistant to the Department of Revenue, reassured Senator Ellis that the amendment to Section 12, adopted by the committee last week, requires that CSED consider the best interest of the child and the best interest of the state when implementing the forgiveness provision. SENATOR ELLIS asked if the interest of the state and child are co-equal. MS. DIANE WENDLANDT, Assistant Attorney General, said the amendment made both interests co-equal. CHAIR SEEKINS said if he had to assess the intent of the committee, he believes members hope to protect the best interests of the child before the best interests of the state. He asked Ms. Bailey if she considers DOR to be an advocate for the child as well as the state. MS. BAILY said she does; CSED's mission is to collect and pay child support to Alaskan children. Regarding the best interest of the state, she said that is important when DOR contemplates its competitive profile to ensure federal incentive funds. That pool of money is ever shrinking and requires all states to meet certain standards. The better a state does in meeting those standards, the more money it receives. The federal guidelines have cautioned the states to not set up an incentive for people to not pay child support with the idea the debt would eventually vanish. That is why DOR wanted some discussion and statutory direction that the state's best interest be considered. SENATOR FRENCH said a person can become a felon in three ways under this bill. He noted that according to the fiscal note, 14,946 cases fall under two of those categories. He expressed concern about passing a law that makes 15,000 Alaskans felons and questioned whether the $10,000 amount of debt should be increased to $15,000, because a person with four children could easily be required to make a $1,000 per month payment. CHAIR SEEKINS noted that a person must be in arrears $10,000 without lawful excuse. He said if the current system doesn't provide enough incentive for a person to make payments without lawful excuse, maybe it needs more teeth, which is what HB 514 will do. He hoped CSED would work with those people with lawful excuses. He added that Alaska has a serious problem if it has 15,000 cases of people who do not pay child support without lawful excuse. 9:15 a.m. SENATOR FRENCH noted the committee previously heard a bill that promotes self-regulation and did not propose making felons out of every restaurant that was unclean. He questioned whether the committee should slow down and consider that it will be making felons out of 15,000 Alaskans for non-payment of child support. CHAIR SEEKINS said if he learned those restaurants were starving 15,000 children he'd be pretty upset. SENATOR OGAN asked if, under current law, people who do not pay child support can be convicted of a class A misdemeanor. MR. MAIN said that is correct and explained the punishment is up to one year in jail, up to a $10,000 fine, and informal probation. SENATOR OGAN asked if all debts, other than child support, are addressed in civil court. MR. MAIN said that is correct, however with child support, the individual is being prosecuted for failure to comply with a court or administrative order, not for the debt. SENATOR OGAN asked what the typical penalty is for violating a court order. SENATOR FRENCH noted it is a $300 fine and maybe 6 months of jail time but he has never seen any jail time imposed by the court. SENATOR OGAN said he is trying to establish some logic with how things are traditionally dealt with. He fears this bill will drive people further underground. CHAIR SEEKINS said this bill is intended to stop that and force people into the open where they either provide a lawful excuse or get penalized. He then said according to page 1, line 11, criminal non-support is a misdemeanor, except criminal non- support without lawful excuse is a class C felony with the three trigger points. He asked members whether they wished to offer any amendments or how they wished to proceed. SENATOR OGAN asked what section of the bill must pass to secure federal funds. MR. MAIN said Section 15. SENATOR FRENCH moved to amend the bill to increase the $10,000 debt amount to $20,000 [Amendment 3] on page 2, lines 5 and 31. CHAIR SEEKINS announced that without objection, Amendment 3 was adopted. SENATOR OGAN asked if Amendment 3 will also apply to people who aid and abet. SENATOR FRENCH said it would apply to both - the obligor and the person aiding or abetting the obligor. SENATOR OGAN moved to strike sections 2, 3, and 4 [Amendment 4]. He commented that the class A misdemeanor penalty is severe enough and it is obviously not being enforced if 15,000 people are in arrears. CHAIR SEEKINS objected for the purpose of discussion and asked the current penalty for aiding or abetting non-support. MR. MAIN said it is a class A misdemeanor. CHAIR SEEKINS asked if the three trigger points exist in current law. MR. MAIN said they do not and that those trigger points are modeled after federal language for criminal non-support. Currently, a person who owes one month of child support is in violation. CHAIR SEEKINS pointed out that HB 514 establishes "knowingly" and the trigger points, and applies to a much more serious level of arrearage. He said he prefers to have some kind of penalty for a person who knowingly avoids payment of child support. SENATOR FRENCH said in looking at the aiding and abetting and non-payment provisions, they were written so that those behaviors must be intentional, which is tantamount to fraud. He said yesterday a person was convicted in federal court for having signed a loan package, having made a misrepresentation in the insurance paperwork to hide a sex offense conviction. Intentionally withholding a fact is a felony under federal law, which is what HB 514 will do. SENATOR OGAN said his intent with Amendment 4 was to do away with the felony. He asked if Section 4, aiding, is a felony. CHAIR SEEKINS said it would be a felony if the person aided and knew the aggregate amount owed was $20,000 or more, knew that no payment was made in 24 months, or that the person was previously convicted of a misdemeanor for non-payment. SENATOR FRENCH added that knowing all of that, the person also must intentionally withhold information. CHAIR SEEKINS agreed and said that is a high standard. SENATOR OGAN said he objected to the bill moving out of committee at this time. CHAIR SEEKINS noted the committee has a busy calendar during the next week and that he personally has no problem with the bill as is. He agreed to hold the bill in committee and asked Senator Ogan to talk to the sponsor about his concerns. SENATOR OGAN withdrew Amendment 4. CHAIR SEEKINS adjourned the meeting at 9:30 a.m.