2007 Montana Legislature

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SENATE BILL NO. 278

INTRODUCED BY GILLAN, RASER

 

A BILL FOR AN ACT ENTITLED: "AN ACT PROVIDING FOR EDUCATIONAL SUPPORT ORDERS IN PROCEEDINGS FOR DISSOLUTION OF MARRIAGE, LEGAL SEPARATION, MAINTENANCE, OR CHILD SUPPORT; AMENDING SECTIONS 40-4-204, 40-4-208, AND 40-6-116, MCA; AND PROVIDING AN APPLICABILITY DATE."

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

 

     NEW SECTION.  Section 1.  Educational support orders. (1) In a proceeding for dissolution of marriage, legal separation, maintenance, or child support, the court may order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for education of the child beyond 18 years of age. The court may require a parent to provide support for a child to attend, for up to a total of 4 full academic years, an institution of higher education for the purpose of attaining a bachelor's degree or other undergraduate degree or a PUBLIC OR private occupational school for the purpose of obtaining vocational instruction. An educational support order may be entered with respect to any child who is under 23 years of age and must terminate not later than the child's 23rd birthday.

     (2) On motion or petition of a parent, the court may enter an educational support order at the time of entry of a decree for dissolution of marriage, legal separation, maintenance, or child support. The court may not enter an educational support order after a decree for dissolution of marriage, legal separation, maintenance, or child support is entered unless the decree explicitly provides that a motion or petition for an educational support order may be filed by either parent at a subsequent date. If an educational support order is not entered at the time of entry of a decree for dissolution of marriage, legal separation, maintenance, or child support and the parents have a child who is under 23 years of age, the court shall inform the parents that an educational support order may not be entered subsequently. The court may accept a parent's waiver of the right to file a motion or petition for an educational support order upon a finding that the parent fully understands the consequences of the waiver.

     (3) The court may not enter an educational support order pursuant to this section unless the court finds as a matter of fact that it is more likely than not that the parents would have provided support to the child for higher education or PUBLIC OR private occupational schooling if the family were intact. After making the finding, the court, in determining whether to enter an educational support order, shall consider all relevant circumstances, including:

     (a) the parents' income, assets, and other obligations, including obligations to other dependents;

     (b) the child's need for support to attend an institution of higher education or a PUBLIC OR private occupational school considering the child's assets and the child's ability to earn income;

     (c) the availability of financial aid from other sources, including grants and loans;

     (d) the reasonableness of the higher education to be funded considering the child's academic record and the financial resources available;

     (e) the child's preparation for, aptitude for, and commitment to higher education; and

     (f) evidence, if any, of the institution of higher education or PUBLIC OR private occupational school that the child would attend.

     (4) At the appropriate time, both parents shall participate in and agree upon the decision as to which institution of higher education or PUBLIC OR private occupational school the child will attend for purposes of calculating an amount of support. The court may make an order resolving the matter if the parents fail to reach an agreement.

     (5 ) (a) To qualify for payments due under an educational support order, the child shall:

     (i) enroll in an accredited institution of higher education or a PUBLIC OR private occupational school;

     (ii) actively pursue a course of study commensurate with the child's vocational goals that constitutes at least one-half the course load determined by that institution or school to constitute full-time enrollment;

     (iii) maintain good academic standing in accordance with the rules of the institution or school; and

     (iv) make available all academic records to both parents during the term of the order.

     (b) The order must be suspended after any academic period during which the child fails to comply with these conditions.

     (6) An educational support order may include support for any necessary educational expense, including room, board, dues, tuition, fees, and registration and application costs. An educational support order may also include the cost of books and medical insurance for the child.

     (7) The court may direct that payments under an educational support order be made:

     (a) to a parent to be forwarded to the institution of higher education or PUBLIC OR private occupational school;

     (b) directly to the institution or school; or

     (c) otherwise, as the court determines to be appropriate.

     (8) On motion or petition of a parent, an educational support order may be modified or enforced in the same manner as is provided by law for any support order.

     (9) This section does not create a right of action by a child for parental support for higher education.

     (10) An educational support order under this section does not include support for graduate or postgraduate education beyond a bachelor's degree.

     (11) Each parent shall, regardless of whether the parent is ordered to pay under an educational support order, cooperate to the fullest extent in the preparation of and provision of financial information that is required for the child's efforts to secure private and public assistance for education purposes. The requirement of this subsection may be enforced by the court as any other provision of a support order.

     (12) This section does not prevent voluntary agreements between the parents to fund a child's education beyond the requirements of an order entered under this section.

 

     Section 2.  Section 40-4-204, MCA, is amended to read:

     "40-4-204.  Child support -- orders to address health insurance -- withholding of child support. (1) In a proceeding for dissolution of marriage, legal separation, maintenance, or child support, the court shall order either or both parents owing a duty of support to a child to pay an amount reasonable or necessary for the child's support, without regard to marital misconduct.

     (2)  The court shall consider all relevant factors, including:

     (a)  the financial resources of the child;

     (b)  the financial resources of the parents;

     (c)  the standard of living that the child would have enjoyed had the marriage not been dissolved;

     (d)  the physical and emotional condition of the child and the child's educational and medical needs;

     (e)  the age of the child;

     (f)  the cost of day care for the child;

     (g)  any parenting plan that is ordered or decided upon; and

     (h)  the needs of any person, other than the child, whom either parent is legally obligated to support.

     (3)  (a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209. The guidelines must be used in all cases, including cases in which the order is entered upon the default of a party and those in which the parties have entered into an agreement regarding the support amount. A verified representation of the defaulting parent's income, based on the best information available, may be used when a parent fails to provide financial information for use in applying the guidelines. The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or that it is inappropriate in that particular case.

     (b)  If the court finds that the guideline amount is unjust or inappropriate in a particular case, it shall state its reasons for that finding. Similar reasons must also be stated in a case in which the parties have agreed to a support amount that varies from the guideline amount. Findings that rebut and vary the guideline amount must include a statement of the amount of support that would have ordinarily been ordered under the guidelines.

     (c)  If the court does not order a parent owing a duty of support to a child to pay any amount for the child's support, the court shall state its reasons for not ordering child support.

     (d)  Child support obligations established under this section are subject to the registration and processing provisions of Title 40, chapter 5, part 9.

     (4)  Each temporary or final district court judgment, decree, or order establishing a child support obligation under this title and each modification of a final order for child support must include a medical support order as provided for in Title 40, chapter 5, part 8.

     (5)  (a) Unless the court makes a written exception under 40-5-315 or 40-5-411 and the exception is included in the support order, a support obligation established by judgment, decree, or order under this section, whether temporary or final, and each modification of an existing support obligation under 40-4-208 must be enforced by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 3 or 4. A support order that omits the written exceptions provided in 40-5-315 or 40-5-411 or that provides for a payment arrangement inconsistent with this section is nevertheless subject to withholding for the payment of support without need for an amendment to the support order or for any further action by the court.

     (b)  If an obligor is exempt from immediate income withholding, the district court judgment or order must include a warning statement that if the obligor is delinquent in the payment of support, the obligor's income may be subject to income-withholding procedures under Title 40, chapter 5, part 3 or 4. Failure to include a warning statement in a judgment or order does not preclude the use of withholding procedures.

     (c)  If a support order subject to income withholding is expressed in terms of a monthly obligation, the order may be annualized and withheld on a weekly or biweekly basis, corresponding to the obligor's regular pay period. When an order is annualized and withheld on a weekly or biweekly basis under this section, the support withheld from the obligor may be retained by the obligee when it exceeds the obligor's monthly support obligation if the excess support is a result of annualized withholding.

     (d)  If an obligor is exempted from paying support through income withholding, the support order must include a requirement that whenever the case is receiving services under Title IV-D of the Social Security Act, support payments must be paid through the department of public health and human services as provided in 40-5-909.

     (6)  (a) Each district court judgment, decree, or order that establishes paternity or establishes or modifies a child support obligation must include a provision requiring the parties to promptly file with the court and to update, as necessary, information on:

     (i)  the party's identity, residential and mailing addresses, telephone number, [social security number,] and driver's license number;

     (ii) the name, address, and telephone number of the party's employer; and

     (iii) if the child is covered by a health or medical insurance plan, the name of the insurance carrier or health benefit plan, the policy identification number, the names of the persons covered, and any other pertinent information regarding coverage or, if the child is not covered, information as to the availability of coverage for the child through the party's employer.

     (b)  The court shall keep the information provided under subsection (6)(a) confidential except that the information may be provided to the department of public health and human services for use in administering Title IV-D of the Social Security Act.

     (c)  The order must also require that in any subsequent child support enforcement action, upon sufficient showing that diligent effort has been made to ascertain the location of the party, the district court or the department of public health and human services, if the department is providing services under Title IV-D of the Social Security Act, may consider due process requirements for notice and service of process met with respect to the party upon delivery of written notice by regular mail to the most recent address of the party or the party's employer's address reported to the court.

     (7)  A judgment, decree, or order establishing a child support obligation under this part may be modified or adjusted as provided in 40-4-208 or, if the department of public health and human services is providing services under Title IV-D of the Social Security Act, may be modified or adjusted by the department as provided for in 40-5-271 through 40-5-273, 40-5-277, and 40-5-278.

     (8)  (a) A district court judgment, decree, or order that establishes or modifies a child support obligation must include a provision requiring the child support obligation to be paid, without need for further court order:

     (i)  to the person with whom the child resides by legal order;

     (ii) if the person with whom the child legally resides voluntarily or involuntarily relinquishes physical care and control of the child to another person, organization, or agency, to the person, organization, or agency to whom physical custody has been relinquished;

     (iii) if any other person, organization, or agency is entitled by law, assignment, or similar reason to receive or collect the child support obligation, to the person, organization, or agency having the right to receive or collect the payment; or

     (iv) to the court for the benefit of the minor child.

     (b)  When the department of public health and human services is providing services under Title IV-D of the Social Security Act, payment of support must be made through the department for distribution to the person, organization, or agency entitled to the payment.

     (c)  A judgment, decree, or order that omits the provision required by subsection (8)(a) is subject to the requirements of subsection (8)(a) without need for an amendment to the judgment, decree, or order or for any further action by the court.

     (9)  A judgment, decree, or order that establishes or modifies a child support obligation must include a provision that if a parent or guardian is the obligee under a child support order and is obligated to pay a contribution for the same child under 41-3-438, 41-5-1304, or 41-5-1512, the parent or guardian assigns and transfers to the department of public health and human services all rights that the parent or guardian may have to child support that are not otherwise assigned under 53-2-613.

     (10) Each temporary or final district court judgment, decree, or order establishing a child support obligation under this title and each modification of a final order for child support may include an educational support order as provided for in [section 1]. (Bracketed language terminates on occurrence of contingency--sec. 1, Ch. 27, L. 1999.)"

 

     Section 3.  Section 40-4-208, MCA, is amended to read:

     "40-4-208.  Modification and termination of provisions for maintenance, support, and property disposition. (1) Except as otherwise provided in 40-4-201(6), a decree may be modified by a court as to maintenance or support only as to installments accruing subsequent to actual notice to the parties of the motion for modification.

     (2)  (a)  Except as provided in 40-4-251 through 40-4-258, whenever the decree proposed for modification does not contain provisions relating to maintenance or support, modification under subsection (1) may only be made only within 2 years of the date of the decree.

     (b)  Except as provided in 40-4-251 through 40-4-258, whenever the decree proposed for modification contains provisions relating to maintenance or support, modification under subsection (1) may only be made only:

     (i)  upon a showing of changed circumstances so substantial and continuing as to make the terms unconscionable;

     (ii)  upon written consent of the parties; or

     (iii)  upon application by the department of public health and human services, whenever the department of public health and human services is providing services under Title IV-D of the federal Social Security Act. The support obligation must be modified, as appropriate, in accordance with the guidelines promulgated under 40-5-209. Except as provided in 40-4-251 through 40-4-258, a modification under this subsection may not be made within 12 months after the establishment of the order or the most recent modification.

     (c)  The nonexistence of a medical support order, as defined in 40-5-804, or a violation of a medical support order justifies an immediate modification of child support in order to:

     (i)  provide for the actual or anticipated costs of the child's medical care;

     (ii) provide or maintain a health benefit plan or individual health insurance coverage for the child; or

     (iii) eliminate any credit for a medical support obligation when it has been permitted or used as a credit in the determination of the child support obligation.

     (3)  The provisions as to property disposition may not be revoked or modified by a court except:

     (a)  upon written consent of the parties; or

     (b)  if the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.

     (4)  Unless otherwise agreed in writing or expressly provided in the decree, the obligation to pay future maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.

     (5)  Provisions Except as provided in an educational support order under [section 1], provisions for the support of a child are terminated by emancipation of the child or the child's graduation from high school if the child is enrolled in high school, whichever occurs later, but in no event later than the child's 19th birthday, unless the termination date is extended or knowingly waived by written agreement or by an express provision of the decree. Provisions for the support of a child do not terminate upon the death of a parent obligated to support the child. When a parent obligated to pay support dies, the amount of support may be modified, revoked, or commuted to a lump-sum payment, to the extent just and appropriate in the circumstances.

     (6)  The decree may be modified, as provided in 40-4-251 through 40-4-258, for failure to disclose assets and liabilities."

 

     Section 4.  Section 40-6-116, MCA, is amended to read:

     "40-6-116.  Judgment or order. (1) The judgment or order of the court determining the existence or nonexistence of the parent and child relationship is determinative for all purposes.

     (2)  If the judgment or order of the court is at variance with the child's birth certificate, the court shall order that a substitute birth certificate be issued under 40-6-123.

     (3)  (a) The judgment or order may contain any other provision directed against the appropriate party to the proceeding concerning the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, or any other matter in the best interest of the child.

     (b)  Except when the financial responsibility of a responsible parent is in the process of being determined pursuant to the administrative procedure provided in 40-5-225, the judgment or order must contain a provision concerning the duty of child support.

     (c)  The judgment or order may direct the father to pay the reasonable expenses of the mother's pregnancy and confinement.

     (4)  (a) Support judgments or orders ordinarily must be for periodic payments, which may vary in amount.

     (b)  In the best interest of the child, a lump-sum payment or the purchase of an annuity may be ordered in lieu of periodic payments of support.

     (c)  The court may limit the father's liability for past support of the child to the proportion of the expenses already incurred that the court considers just.

     (5)  In determining the amount to be paid by a parent for support of the child and the period during which the duty of support is owed, a court enforcing the obligation of support shall consider all relevant facts, including:

     (a)  the needs of the child, including medical needs;

     (b)  the standard of living and circumstances of the parents;

     (c)  the relative financial means of the parents;

     (d)  the earning ability of the parents;

     (e)  the need and capacity of the child for education, including higher education;

     (f)  the age of the child;

     (g)  the financial resources and the earning ability of the child;

     (h)  the responsibility of the parents for the support of others;

     (i)  the value of services contributed by the custodial parent;

     (j)  the cost of day care for the child; and

     (k)  any custody arrangement that is ordered or decided upon.

     (6)  (a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of public health and human services pursuant to 40-5-209. The guidelines must be used in all cases, including cases in which the order is entered upon the default of a party and those in which the parties have entered into an agreement regarding the support amount. A verified representation of a defaulting parent's income, based on the best information available, may be used when a parent fails to provide financial information for use in applying the guidelines. The amount determined under the guidelines is presumed to be an adequate and reasonable support award, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.

     (b)  If the court finds that the guideline amount is unjust or inappropriate in a particular case, it shall state its reasons for finding that the application of the standards and guidelines is unjust to the child or a party or is inappropriate in that particular case. Similar reasons must also be stated in a case in which the parties have agreed to a support amount that varies from the guideline amount. Findings that rebut and vary the guideline amount must include a statement of the amount of support that would have ordinarily been ordered under the guidelines.

     (c)  If the court does not order a parent owing a duty of support to a child to pay any amount for the child's support, the court shall state its reasons for not ordering child support.

     (d)  Child support obligations established under this section are subject to the registration and processing provisions of Title 40, chapter 5, part 9.

     (7)  The judgment or order, whether temporary or final, concerning child support and each modification of a judgment or order for child support must include a medical support order as defined in 40-5-804.

     (8)  (a) Unless an exception is found under 40-5-315 or 40-5-411 and the exception is included in the support order, a support obligation established by judgment, decree, or order under this section, whether temporary or final, and each modification of an existing support obligation made under 40-6-118 must be enforced by immediate or delinquency income withholding, or both, under Title 40, chapter 5, part 3 or 4. A support order that omits the exception or that provides for a payment arrangement inconsistent with this section is nevertheless subject to withholding for the payment of support without need for an amendment to the support order or for any further action by the court.

     (b)  If a support order subject to income withholding is expressed in terms of a monthly obligation, the order may be annualized and withheld on a weekly or biweekly basis, corresponding to the obligor's regular pay period.

     (c)  If an obligor is excepted from paying support through income withholding, the support order must include as part of the order a requirement that whenever the case is receiving services under Title IV-D of the Social Security Act, support payments must be paid through the department of public health and human services as provided in 40-5-909.

     (9)  (a) If the district court establishes paternity or establishes or modifies a child support obligation, the judgment, decree, or order must include a provision requiring the parties to promptly file with the court and to update, as necessary, information on:

     (i)  identity of the party;

     [(ii) social security number;]

     (iii) residential and mailing addresses;

     (iv) telephone number;

     (v)  driver's license number;

     (vi) name, address, and telephone number of the party's employer; and

     (vii) if the child is covered by a health or medical insurance plan, the name of the insurance carrier or health benefit plan, the policy identification number, the name of the persons covered, and any other pertinent information regarding coverage or, if the child is not covered, information as to the availability of coverage for the child through the party's employer.

     (b)  The order must further direct that in any subsequent child support enforcement action, upon sufficient showing that diligent effort has been made to ascertain the location of the party, the district court or the department of public health and human services, if the department is providing services under Title IV-D of the Social Security Act, may consider the due process requirements for notice and service of process to be met with respect to the party upon delivery of written notice by regular mail to the most recent address of the party or the party's employer's address reported to the court.

     (10) A judgment, decree, or order establishing a child support obligation under this part may be modified or adjusted as provided by 40-4-208 or, if the department of public health and human services is providing services under Title IV-D of the Social Security Act, may be modified or adjusted, by the department as provided for in 40-5-271 through 40-5-273, 40-5-277, and 40-5-278.

     [(11) The social security number of a person subject to a paternity determination under this part must be recorded in the records relating to the matter. The recordkeeper shall keep the social security number from this source confidential, except that the number may be provided to the department of public health and human services for use in administering Title IV-D of the Social Security Act.]

     (12) The judgment or order, whether temporary or final, concerning child support and each modification of a judgment or order for child support may include an educational support order as provided in [section 1]. (Bracketed language terminates on occurrence of contingency--sec. 1, Ch. 27, L. 1999.)"

 

     NEW SECTION.  Section 5.  Codification instruction. [Section 1] is intended to be codified as an integral part of Title 40, chapter 4, part 2, and the provisions of Title 40, chapter 4, part 2, apply to [section 1].

 

     NEW SECTION.  Section 6.  Applicability. [This act] applies to proceedings in which an initial order of child support is entered on or after [the effective date of this act].

- END -

 


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