SF 1971

as introduced - 79th Legislature (1995 - 1996) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act 
  1.2             relating to marriage dissolution; changing provisions 
  1.3             relating to income withholding, visitation expeditors, 
  1.4             maintenance, and support; amending Minnesota Statutes 
  1.5             1994, sections 518.14, subdivision 1; and 518.1751; 
  1.6             Minnesota Statutes 1995 Supplement, sections 518.24; 
  1.7             and 518.551, subdivision 5. 
  1.8   BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.9      Section 1.  Minnesota Statutes 1994, section 518.14, 
  1.10  subdivision 1, is amended to read: 
  1.11     Subdivision 1.  [GENERAL.] Except as provided in 
  1.12  subdivision 2, in a proceeding under this chapter, the court 
  1.13  shall award attorney fees, costs, and disbursements in an amount 
  1.14  necessary to enable a party to carry on or contest the 
  1.15  proceeding, provided it finds: 
  1.16     (1) that the fees are necessary for the good-faith 
  1.17  assertion of the party's rights in the proceeding and will not 
  1.18  contribute unnecessarily to the length and expense of the 
  1.19  proceeding; 
  1.20     (2) that the party from whom fees, costs, and disbursements 
  1.21  are sought has the means to pay them; and 
  1.22     (3) that the party to whom fees, costs, and disbursements 
  1.23  are awarded does not have the means to pay them. 
  1.24  Nothing in this section precludes the court from awarding, in 
  1.25  its discretion, additional fees, costs, and disbursements 
  1.26  against a party who unreasonably contributes to the length or 
  2.1   expense of the proceeding.  Fees, costs, and disbursements 
  2.2   provided for in this section may be awarded at any point in the 
  2.3   proceeding, including a modification proceeding under sections 
  2.4   518.18 and 518.64.  The court may adjudge costs and 
  2.5   disbursements against either party.  The court may authorize the 
  2.6   collection of money awarded by execution, or by income 
  2.7   withholding if maintenance or support payments have been 
  2.8   ordered, or out of property sequestered, or in any other manner 
  2.9   within the power of the court.  An award of attorney's fees made 
  2.10  by the court during the pendency of the proceeding or in the 
  2.11  final judgment survives the proceeding and if not paid by the 
  2.12  party directed to pay the same may be enforced as above provided 
  2.13  or by a separate civil action brought in the attorney's own 
  2.14  name.  If the proceeding is dismissed or abandoned prior to 
  2.15  determination and award of attorney's fees, the court may 
  2.16  nevertheless award attorney's fees upon the attorney's motion.  
  2.17  The award shall also survive the proceeding and may be enforced 
  2.18  in the same manner as last above provided. 
  2.19     Sec. 2.  Minnesota Statutes 1994, section 518.1751, is 
  2.20  amended to read: 
  2.21     518.1751 [VISITATION DISPUTE RESOLUTION.] 
  2.22     Subdivision 1.  [VISITATION EXPEDITOR.] (a) Upon agreement 
  2.23  of all parties, the court may appoint a visitation expeditor to 
  2.24  resolve visitation disputes that occur under a visitation order 
  2.25  while a matter is pending under this chapter, chapter 257, or 
  2.26  518A, or after a decree is entered.  The court may not appoint a 
  2.27  visitation expeditor unless the parties agree.  Prior to 
  2.28  appointing the visitation expeditor, the court shall give the 
  2.29  parties notice that the costs of the visitation expeditor will 
  2.30  be apportioned among the parties and that if the parties do not 
  2.31  reach an agreement, the visitation expeditor will make a 
  2.32  nonbinding decision resolving the dispute. 
  2.33     (b) For purposes of this section, "visitation dispute" 
  2.34  means a disagreement among parties about visitation with a 
  2.35  child.  "Visitation dispute" includes a claim by a custodial 
  2.36  parent that a noncustodial parent is not visiting a child as 
  3.1   well as a claim by a noncustodial parent that a custodial parent 
  3.2   is denying or interfering with visitation. 
  3.3      Subd. 2.  [APPOINTMENT; COSTS.] The court shall appoint the 
  3.4   visitation expeditor.  If the parties cannot agree on a 
  3.5   visitation expeditor, the court shall present a list of 
  3.6   candidates with one more candidate than there are parties to the 
  3.7   dispute.  In developing the list of candidates, the court must 
  3.8   give preference to persons who agree to volunteer their 
  3.9   services.  Each party shall strike one name and the court shall 
  3.10  appoint the remaining individual as the visitation expeditor.  
  3.11  In its order appointing the visitation expeditor, the court 
  3.12  shall apportion the costs of the visitation expeditor among the 
  3.13  parties, with each party bearing the portion of costs that the 
  3.14  court determines is just and equitable under the circumstances.  
  3.15  Once appointed, the visitation expeditor's continuing authority 
  3.16  to resolve disputes is not dependent upon the agreement of all 
  3.17  parties. 
  3.18     Subd. 3.  [AGREEMENT OR DECISION.] (a) If a visitation 
  3.19  dispute arises, the visitation expeditor shall meet confer with 
  3.20  the parties within five days as soon as practical and make a 
  3.21  diligent effort to facilitate an agreement to resolve the 
  3.22  visitation dispute.  
  3.23     (b) If the parties do not reach an agreement, the expeditor 
  3.24  shall make a decision resolving the dispute as soon as 
  3.25  possible.  If a party does not comply with an agreement of the 
  3.26  parties or a decision of the expeditor, any party may bring a 
  3.27  motion with the court to resolve the dispute.  The court may 
  3.28  consider the agreement of the parties or the decision of the 
  3.29  expeditor, but neither is binding on the court. 
  3.30     Subd. 4.  [OTHER AGREEMENTS.] This section does not 
  3.31  preclude the parties from voluntarily agreeing to submit their 
  3.32  visitation dispute to a neutral third party. 
  3.33     Sec. 3.  Minnesota Statutes 1995 Supplement, section 
  3.34  518.24, is amended to read: 
  3.35     518.24 [SECURITY; SEQUESTRATION; CONTEMPT.] 
  3.36     In all cases when maintenance or support payments are 
  4.1   ordered, The court may require sufficient security to be given 
  4.2   for the payment of them according to the terms of the 
  4.3   order maintenance or support.  Upon neglect or refusal to give 
  4.4   security, or upon failure to pay the maintenance or support, the 
  4.5   court may sequester the obligor's personal estate and the rents 
  4.6   and profits of real estate of the obligor, and appoint a 
  4.7   receiver of them.  The court may cause the personal estate and 
  4.8   the rents and profits of the real estate to be applied according 
  4.9   to the terms of the order.  The obligor is presumed to have an 
  4.10  income from a source sufficient to pay the maintenance or 
  4.11  support order.  A child support or maintenance order constitutes 
  4.12  prima facie evidence that the obligor has the ability to pay the 
  4.13  award.  If the obligor disobeys the order, it is prima facie 
  4.14  evidence of contempt.  The court may cite the obligor for 
  4.15  contempt under this section, section 518.617, or chapter 588. 
  4.16     Sec. 4.  Minnesota Statutes 1995 Supplement, section 
  4.17  518.551, subdivision 5, is amended to read: 
  4.18     Subd. 5.  [NOTICE TO PUBLIC AUTHORITY; GUIDELINES.] (a) The 
  4.19  petitioner shall notify the public authority of all proceedings 
  4.20  for dissolution, legal separation, determination of parentage or 
  4.21  for the custody of a child, if either party is receiving aid to 
  4.22  families with dependent children or applies for it subsequent to 
  4.23  the commencement of the proceeding.  The notice must contain the 
  4.24  full names of the parties to the proceeding, their social 
  4.25  security account numbers, and their birth dates.  After receipt 
  4.26  of the notice, the court shall set child support as provided in 
  4.27  this subdivision.  The court may order either or both parents 
  4.28  owing a duty of support to a child of the marriage to pay an 
  4.29  amount reasonable or necessary for the child's support, without 
  4.30  regard to marital misconduct.  The court shall approve a child 
  4.31  support stipulation of the parties if each party is represented 
  4.32  by independent counsel, unless the stipulation does not meet the 
  4.33  conditions of paragraph (i) (j).  In other cases the court shall 
  4.34  determine and order child support in a specific dollar amount in 
  4.35  accordance with the guidelines and the other factors set forth 
  4.36  in paragraph (c) (d) and any departure therefrom.  The court may 
  5.1   also order the obligor to pay child support in the form of a 
  5.2   percentage share of the obligor's net bonuses, commissions, or 
  5.3   other forms of compensation, in addition to, or if the obligor 
  5.4   receives no base pay, in lieu of, an order for a specific dollar 
  5.5   amount. 
  5.6      (b)(1) The court shall derive a specific dollar amount for 
  5.7   child support by multiplying the obligor's net income by the 
  5.8   percentage indicated by the following guidelines:  
  5.9   Net Income Per            Number of Children 
  5.10  Month of Obligor 
  5.11                1     2     3     4     5     6    7 or 
  5.12                                                   more 
  5.13  $550 and Below     Order based on the ability of the 
  5.14                     obligor to provide support  
  5.15                     at these income levels, or at higher  
  5.16                     levels, if the obligor has 
  5.17                     the earning ability. 
  5.18  $551 - 600   16%   19%   22%   25%   28%   30%   32% 
  5.19  $601 - 650   17%   21%   24%   27%   29%   32%   34% 
  5.20  $651 - 700   18%   22%   25%   28%   31%   34%   36% 
  5.21  $701 - 750   19%   23%   27%   30%   33%   36%   38% 
  5.22  $751 - 800   20%   24%   28%   31%   35%   38%   40% 
  5.23  $801 - 850   21%   25%   29%   33%   36%   40%   42% 
  5.24  $851 - 900   22%   27%   31%   34%   38%   41%   44% 
  5.25  $901 - 950   23%   28%   32%   36%   40%   43%   46% 
  5.26  $951 - 1000  24%   29%   34%   38%   41%   45%   48% 
  5.27  $1001- 5000  25%   30%   35%   39%   43%   47%   50% 
  5.28  or the amount 
  5.29  in effect under
  5.30  paragraph (k) (l)
  5.31     (2) Guidelines for support for an obligor with a monthly 
  5.32  income in excess of the income limit currently in effect under 
  5.33  paragraph (k) (l) shall be the same dollar amounts as provided 
  5.34  for in the guidelines for an obligor with a monthly income equal 
  5.35  to the limit in effect. 
  5.36     (3) For purposes of this section, "net income defined as" 
  6.1   means:  
  6.2        
  6.3            Total monthly 
  6.4            income less           *(i) Federal Income Tax 
  6.5                                 *(ii) State Income Tax 
  6.6                                 (iii) Social Security
  6.7                                        Deductions 
  6.8                                  (iv) Reasonable
  6.9                                        Pension Deductions
  6.10           *Standard 
  6.11           Deductions apply-      (v) Union Dues 
  6.12           use of tax tables     (vi) Cost of Dependent Health
  6.13           recommended                 Insurance Coverage  
  6.14                                (vii) Cost of Individual or Group
  6.15                                       Health/Hospitalization
  6.16                                       Coverage or an        
  6.17                                       Amount for Actual 
  6.18                                       Medical Expenses   
  6.19                               (viii) A Child Support or  
  6.20                                       Maintenance Order that is
  6.21                                       Currently Being Paid. 
  6.22     "Net income" does not include: 
  6.23     (1) the income of the obligor's spouse, but does include 
  6.24  in-kind payments received by the obligor in the course of 
  6.25  employment, self-employment, or operation of a business if the 
  6.26  payments reduce the obligor's living expenses; or. 
  6.27     (2) "Net income" does not include compensation received by 
  6.28  a party for employment in excess of a 40-hour work week, 
  6.29  provided that: 
  6.30     (i) support is nonetheless ordered in an amount at least 
  6.31  equal to the guidelines amount based on income not excluded 
  6.32  under this clause; and 
  6.33     (ii) the party demonstrates, and the court finds, that: 
  6.34     (A) the excess employment began after the filing of the 
  6.35  petition for dissolution; 
  6.36     (B) the excess employment reflects an increase in the work 
  7.1   schedule or hours worked over that of the two years immediately 
  7.2   preceding the filing of the petition; 
  7.3      (C) the excess employment is voluntary and not a condition 
  7.4   of employment; 
  7.5      (D) the excess employment is in the nature of additional, 
  7.6   part-time or overtime employment compensable by the hour or 
  7.7   fraction of an hour; and 
  7.8      (E) the party's compensation structure has not been changed 
  7.9   for the purpose of affecting a support or maintenance obligation.
  7.10     (c)(1) The court shall review the work-related and 
  7.11  education-related child care costs paid and shall allocate the 
  7.12  costs to each parent in proportion to each parent's net income, 
  7.13  as determined under this subdivision, after the transfer of 
  7.14  child support and spousal maintenance, unless the allocation 
  7.15  would be substantially unfair to either parent.  There is a 
  7.16  presumption of substantial unfairness if after the sum total of 
  7.17  child support, spousal maintenance, and child care costs is 
  7.18  subtracted from the noncustodial parent's income, the income is 
  7.19  at or below 100 percent of the federal poverty guidelines.  The 
  7.20  cost of child care for purposes of this paragraph is 75 percent 
  7.21  of the actual cost paid for child care, to reflect the 
  7.22  approximate value of state and federal tax credits available to 
  7.23  the custodial parent.  The actual cost paid for child care is 
  7.24  the total amount received by the child care provider for the 
  7.25  child or children of the obligor from the obligee or any public 
  7.26  agency.  The court shall require verification of employment or 
  7.27  school attendance and documentation of child care expenses from 
  7.28  the obligee and the public agency, if applicable.  If child care 
  7.29  expenses fluctuate during the year because of seasonal 
  7.30  employment or school attendance of the obligee or extended 
  7.31  periods of visitation with the obligor, the court shall 
  7.32  determine child care expenses based on an average monthly cost.  
  7.33  The amount allocated for child care expenses is considered child 
  7.34  support but is not subject to a cost-of-living adjustment under 
  7.35  section 518.641.  The amount allocated for child care expenses 
  7.36  terminates when either party notifies the public authority that 
  8.1   the child care costs have ended and without any legal action on 
  8.2   the part of either party.  The public authority shall verify the 
  8.3   information received under this provision before authorizing 
  8.4   termination.  The termination is effective as of the date of the 
  8.5   notification.  In other cases where there is a substantial 
  8.6   increase or decrease in child care expenses, the parties may 
  8.7   modify the order under section 518.64. 
  8.8      (2) The court may allow the noncustodial parent to care for 
  8.9   the child while the custodial parent is working, as provided in 
  8.10  section 518.175, subdivision 8.  Allowing the noncustodial 
  8.11  parent to care for the child under section 518.175, subdivision 
  8.12  8, is not a reason to deviate from the guidelines. 
  8.13     (c) (d) In addition to the child support guidelines, the 
  8.14  court shall take into consideration the following factors in 
  8.15  setting or modifying child support or in determining whether to 
  8.16  deviate from the guidelines: 
  8.17     (1) all earnings, income, and resources of the parents, 
  8.18  including real and personal property, but excluding income from 
  8.19  excess employment of the obligor or obligee that meets the 
  8.20  criteria of paragraph (b), clause (2)(ii) (3), item (ii); 
  8.21     (2) the financial needs and resources, physical and 
  8.22  emotional condition, and educational needs of the child or 
  8.23  children to be supported; 
  8.24     (3) the standard of living the child would have enjoyed had 
  8.25  the marriage not been dissolved, but recognizing that the 
  8.26  parents now have separate households; 
  8.27     (4) which parent receives the income taxation dependency 
  8.28  exemption and what financial benefit the parent receives from 
  8.29  it; 
  8.30     (5) the parents' debts as provided in paragraph (d) (e); 
  8.31  and 
  8.32     (6) the obligor's receipt of assistance under sections 
  8.33  256.72 to 256.87 or 256B.01 to 256B.40.  
  8.34     (d) (e) In establishing or modifying a support obligation, 
  8.35  the court may consider debts owed to private creditors, but only 
  8.36  if: 
  9.1      (1) the right to support has not been assigned under 
  9.2   section 256.74; 
  9.3      (2) the court determines that the debt was reasonably 
  9.4   incurred for necessary support of the child or parent or for the 
  9.5   necessary generation of income.  If the debt was incurred for 
  9.6   the necessary generation of income, the court shall consider 
  9.7   only the amount of debt that is essential to the continuing 
  9.8   generation of income; and 
  9.9      (3) the party requesting a departure produces a sworn 
  9.10  schedule of the debts, with supporting documentation, showing 
  9.11  goods or services purchased, the recipient of them, the amount 
  9.12  of the original debt, the outstanding balance, the monthly 
  9.13  payment, and the number of months until the debt will be fully 
  9.14  paid. 
  9.15     (e) (f) Any schedule prepared under paragraph (d) (e), 
  9.16  clause (3), shall contain a statement that the debt will be 
  9.17  fully paid after the number of months shown in the schedule, 
  9.18  barring emergencies beyond the party's control.  
  9.19     (f) (g) Any further departure below the guidelines that is 
  9.20  based on a consideration of debts owed to private creditors 
  9.21  shall not exceed 18 months in duration, after which the support 
  9.22  shall increase automatically to the level ordered by the court.  
  9.23  Nothing in this section shall be construed to prohibit one or 
  9.24  more step increases in support to reflect debt retirement during 
  9.25  the 18-month period.  
  9.26     (g) (h) If payment of debt is ordered pursuant to this 
  9.27  section, the payment shall be ordered to be in the nature of 
  9.28  child support.  
  9.29     (h) (i) Nothing shall preclude the court from receiving 
  9.30  evidence on the above factors to determine if the guidelines 
  9.31  should be exceeded or modified in a particular case.  
  9.32     (i) (j) The guidelines in this subdivision are a rebuttable 
  9.33  presumption and shall be used in all cases when establishing or 
  9.34  modifying child support.  If the court does not deviate from the 
  9.35  guidelines, the court shall make written findings concerning the 
  9.36  amount of the obligor's income used as the basis for the 
 10.1   guidelines calculation and any other significant evidentiary 
 10.2   factors affecting the determination of child support.  If the 
 10.3   court deviates from the guidelines, the court shall make written 
 10.4   findings giving the amount of support calculated under the 
 10.5   guidelines, the reasons for the deviation, and shall 
 10.6   specifically address the criteria in paragraph (c) (d) and how 
 10.7   the deviation serves the best interest of the child.  The court 
 10.8   may deviate from the guidelines if both parties agree and the 
 10.9   court makes written findings that it is in the best interests of 
 10.10  the child, except that in cases where child support payments are 
 10.11  assigned to the public agency under section 256.74, the court 
 10.12  may deviate downward only as provided in paragraph (j) (k).  
 10.13  Nothing in this paragraph prohibits the court from deviating in 
 10.14  other cases.  The provisions of this paragraph apply whether or 
 10.15  not the parties are each represented by independent counsel and 
 10.16  have entered into a written agreement.  The court shall review 
 10.17  stipulations presented to it for conformity to the guidelines 
 10.18  and the court is not required to conduct a hearing, but the 
 10.19  parties shall provide the documentation of earnings required 
 10.20  under subdivision 5b. 
 10.21     (j) (k) If the child support payments are assigned to the 
 10.22  public agency under section 256.74, the court may not deviate 
 10.23  downward from the child support guidelines unless the court 
 10.24  specifically finds that the failure to deviate downward would 
 10.25  impose an extreme hardship on the obligor. 
 10.26     (k) (l) The dollar amount of the income limit for 
 10.27  application of the guidelines must be adjusted on July 1 of 
 10.28  every even-numbered year to reflect cost-of-living changes.  The 
 10.29  supreme court shall select the index for the adjustment from the 
 10.30  indices listed in section 518.641.  The state court 
 10.31  administrator shall make the changes in the dollar amount 
 10.32  required by this paragraph available to courts and the public on 
 10.33  or before April 30 of the year in which the amount is to change.