HRS § 571-52.2 - Automatic assignment by court or administrative order of future income for payment of child support

(a) Notwithstanding section 571-52, the court shall order an assignment of future income when: (1) The court has ordered any person (hereinafter the "obligor") to make periodic payments toward the support of a child pursuant to a court or administrative order, judgment, or decree; (2) The court or administrative order, judgment, or decree provides for an automatic assignment of the obligor's income upon the obligor's failure to timely pay any child support that the obligor is required to pay through the child support enforcement agency or directly to the obligee; and (3) The court finds the obligor to be delinquent in payments in an amount equal to or greater than the sum of payments which would become due over a one-month period under the order, judgment, or decree providing for child support. The order shall take effect without necessity of further action of the court, except when a hearing is requested under subsection (c). (b) The court or the child support enforcement agency, on its own motion, may order an assignment of future income, or a portion thereof, of the obligor in an amount adequate to insure that past due payments and payments which will become due in the future under the terms of the support order will be paid. (c) The court or the clerk of the court shall provide the obligor written notice at least fourteen days in advance of entering an automatic income assignment and inform the obligor the automatic income assignment will issue on a certain date unless the obligor files with the court or the clerk of the court a written objection to the automatic assignment and a written request for a hearing. If the obligor files the written objection and the written request, the court or the clerk of the court shall not issue the automatic assignment of future income until a hearing is held and the matter resolved. The court shall establish and implement other notice procedures as may be necessary to adequately protect the obligor's right to procedural due process. (d) The order for automatic assignment shall operate as an assignment by the obligor to the child support enforcement agency and shall be binding upon any person who is or shall become obligated to the obligor for payment of income and who has been served with a copy of the assignment order. The order shall be in the standard format prescribed by Title IV-D of the Social Security Act, as amended by the child support enforcement agency. The assignment shall continue after the obligor's requirement to pay future child support has ended if the obligor owes past due support, and any amount received pursuant to the assignment shall be applied to satisfy all past due support owed. The assignment shall be terminated when appropriate by the court, the clerk of the court, or the child support enforcement agency; provided that payment of all overdue support shall not be the sole basis for terminating the assignment. An employer withholding income for payment to the child support enforcement agency shall terminate withholding upon receipt of a notice from the child support enforcement agency to terminate income withholding. In the event that the obligee retains private counsel or proceeds pro se, the obligee shall have primary responsibility for terminating the assignment. If the obligee fails to terminate the assignment when appropriate, the obligee shall reimburse the obligor to the extent of any overpayment. If the assignment is not terminated when appropriate, the obligor may seek reimbursement for any overpayment from the obligee or from the child support enforcement agency, to the extent the overpayment was disbursed to the department of human services. The child support enforcement agency shall establish procedures by rule in accordance with chapter 91 for the prompt reimbursement for any overpayment to the obligor. (e) An employer receiving an assignment order shall send the amounts withheld to this State's child support enforcement agency within five working days after the obligor is paid. The employer shall begin withholding no later than the first pay period occurring within seven business days following the date a copy of the order is mailed to the employer. As used in this subsection, the term "business day" means a day on which the employer's office is open for regular business. The employer shall withhold funds as directed in the order, except that when an employer receives an income withholding order issued by another state, the employer shall send the amounts withheld to that state's agency administering a program under Title IV-D of the Social Security Act and apply the income withholding law of the state of the obligor's principal place of employment in determining: (1) The employer's fee for processing an income assignment order; (2) The maximum amount permitted to be withheld from the obligor's income under section 303(b) of the Consumer Credit Protection Act (15 U.S.C. §1673(b)); (3) The time periods within which the employer must implement the income withholding order and forward the child support payment; (4) The priorities for withholding and allocating income withheld for multiple child support obligees; and (5) Any withholding terms or conditions not specified in the order. An employer who complies with an income assignment order that is regular on its face shall not be subject to civil liability to any person or agency for conduct in compliance with the order. An employer who is required to withhold amounts from the income of more than one obligor may remit a sum total of the amounts in one check, with a listing of the amounts applicable to each obligor. Within two working days after receipt of the amounts withheld by the employer, the child support enforcement agency shall disburse those amounts to the obligee for the benefit of the child, except that the child support enforcement agency may delay the distribution of collections toward arrearages until the resolution of any timely request for a hearing with respect to such arrearages. (f) For each payment made pursuant to an assignment order, the person making such payment may deduct and retain as an administrative fee the additional amount of $2 from the income owed to the obligor. The total amount withheld from the obligor's income including the administrative fee may not be in excess of the maximum amounts permitted under section 303(b) of the Consumer Credit Protection Act (15 U.S.C. §1673(b)). Any assignment made pursuant to an assignment order shall have priority as against any garnishment, attachment, execution, or other assignment order, or any other order and the same shall not be subject to any of the exemptions or restrictions contained in part III of chapter 651, and chapters 652 and 653. For purposes of this section, delinquencies in payments shall be computed on the basis of the moneys owed and unpaid on the date that the obligor under the support order has been given notice pursuant to law of the application for the order of assignment, and the fact that the obligor may have subsequently paid such delinquencies shall not relieve the court or the child support enforcement agency of its duty under this subsection to order the assignment. (g) It shall be unlawful for any employer to fail to comply with the requirements of this section. In addition, an employer who fails to comply with an order of assignment of future income, as provided for under this section, shall be liable to the obligee or the obligee's assignee for whom support was required to be paid, for the full amount of all sums ordered to be withheld and transmitted and not otherwise done so. (h) The only basis for contesting a withholding under this section is a mistake of fact, which, for purposes of this section, means an error in the amount of current or overdue support or in the identity of the alleged absent parent. (i) In contested cases, the State shall notify the obligor, within forty-five days, as to whether the withholding of the obligor's income will occur. (j) Obligors may request withholding of their income prior to the entry of an order for the repayment of a delinquency. (k) Notice of automatic income assignment after a one-month delinquency shall be included in every child support order entered hereafter in the State. (l) If there is more than one obligee, the amounts withheld from the income of an obligor shall be allocated among the obligees. The allocation may be based on each obligee's proportionate share of the amount of the withholding orders that were served on the employer of the obligor. In no case shall the allocation result in a withholding for one of the support obligations not being implemented. (m) The provisions of section 571-52(d) and (e) shall apply to all orders for automatic assignments issued under this section. (n) Notwithstanding any other provision of law, for purposes of this section, the term "income" shall include without limitation, salaries, wages, earnings, workers' compensation, unemployment compensation, disability benefits, commissions, independent contractor income, and any other entitlement to money including moneys payable as a pension or as an annuity or retirement or disability or death or other benefit, or as a return of contributions and interest thereon from the United States government, or from the State or other political subdivision thereof, or from any retirement, disability, or annuity system established by any of them pursuant to statute. The term "employer", as used in this section includes the United States government, the State, any political subdivision thereof and any person who is or shall become obligated to the obligor for payment of income. [L 1984, c 207, §3; am L 1985, c 176, §2; am L 1986, c 332, §13; am L 1987, c 161, §2; am L 1990, c 152, §1 and c 176, §2; am L 1992, c 212, §1; am L 1995, c 125, §§1 to 3; am L 1996, c 25, §1; am L 1997, c 293, §§22, 23; am L 2000, c 194, §2; am L 2001, c 55, §27; am L 2006, c 34, §1; am L 2009, c 115, §1] Rules of Court Enforcement of order for payment of support, see HFCR rule 69. Case Notes Neither plaintiff nor members of plaintiff's class had cognizable state constitutional property interest based on subsection (e) on any interest accrued on late-paid child support payments; §§576D-10, 661-8, 662-2, and 662-8 cited by the trial court in its ruling confirmed that these statutes are silent as to whether plaintiffs possessed a property right in the accrued interest for payments disbursed outside of the two-day period. 111 H. 367, 141 P.3d 1014 (2006).