Legislature(2003 - 2004)

04/23/2004 08:10 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= 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.                                                                                

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