Legislature(2003 - 2004)

05/01/2004 05:12 PM JUD

Audio Topic
* first hearing in first committee of referral
+ 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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