House Bill No. 253

Introduced By mercer, halligan

A Bill for an Act entitled: "An Act requiring a state agency, other than a district court, to pay fees charged by a sheriff for services RELATED TO CHILD SUPPORT THAT ARE provided to the state agency; PROVIDING FOR THE COLLECTION OF THE FEES FROM THE PERSON SERVED OR UPON WHOM SERVICE IS ATTEMPTED; and amending ~~section~~ SECTIONS 7-32-2141 AND 40-5-210, MCA."

Be it enacted by the Legislature of the State of Montana:

Section 1. Section 7-32-2141, MCA, is amended to read:

"7-32-2141. Fees of sheriff. (1) For the services provided in subsections (1)(a) through (1)(n), the sheriff ~~shall~~ must receive the fees~~, if any,~~ set by the county governing body. If fees have not been set by the county governing body, the sheriff ~~shall~~ must receive the following:

(a) for the service of summons and complaint on each defendant, $5;

(b) for making a return of a summons for a person not found in the county, in addition to actual mileage traveled, $5;

(d) for service of attachment on the body or order of arrest on each defendant, $5;

(e) for the service of affidavit, order, and undertaking in claim and delivery, $5;

(f) for serving a subpoena, $2.50 for each witness summoned;

(g) for serving a writ of possession or restitution, $5;

(h) for trial of the right of property or damages, including all services except mileage, $7;

(i) for taking bond or undertaking in any case authorized by law, $5;

(j) for serving every notice, rule, or order, $5 for each person served;

(k) for a copy of any writ, process, or other paper when demanded or required by law, 25 cents for each page;

(l) for posting notices and advertising any property for sale on execution or under any judgment or order of sale, exclusive of cost of publication, $5;

(m) for holding any sheriff's sale for personal or real property on execution or under any judgment or order of sale, $7.50;

(n) for cancellation or postponement of sheriff's sale, $5.

(2) All fees collected by the sheriff for the services provided in subsection (1) must be paid to the county treasurer as provided in 7-4-2511(1), and the fees must be deposited by the county treasurer in the general fund of the county unless the county has instituted a public safety levy, in which case the fees must be deposited in the account established pursuant to 7-6-2513.

(3) Except for a district court, an agency of the state shall pay the fees established in subsection (1) for services RELATED TO CHILD SUPPORT THAT ARE provided by a sheriff pursuant to subsection (1). AN AGENCY PAYING THE FEES PROVIDED FOR IN THIS SUBSECTION MAY INCLUDE THE AMOUNT OF THE FEES IN THE HANDLING FEES PURSUANT TO 40-5-210. THE CHILD SUPPORT ENFORCEMENT DIVISION OF THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES MAY IMMEDIATELY COLLECT THE FEE FROM THE PARTY UPON WHOM SERVICE IS ATTEMPTED OR PERFECTED BY ANY METHOD AVAILABLE TO IT FOR THE COLLECTION OF JUDGMENTS OR OTHER ADJUDICATED DEBTS."

SECTION 2. SECTION 40-5-210, MCA, IS AMENDED TO READ:

"40-5-210. Standardized fee schedule -- rules. (1) The department may charge an application fee to each person applying for services under 40-5-203, except that the fee may not be charged to persons who receive continuing services under 40-5-203(3). The application fee may be:

(a) a flat dollar amount; or

(b) an amount based on a sliding fee schedule that is based on the applicant's income level.

(2) If paternity is established or presumed under 40-5-234 for the alleged father, the fees for paternity blood testing may be recovered from the parent, whether the alleged father or the mother, denying paternity of the alleged father. The total amount of the paternity blood testing fee may not exceed the actual costs of the paternity blood tests.

(3) The department may charge a handling fee for each payment of support collected on behalf of any obligee who is not a recipient of public assistance. The department may withhold the fee from the support payment before distribution to the obligee.

(4) The department may charge an obligor a late payment fee for each late payment of support collected on behalf of any obligee.

(5) The department may establish a fee schedule in order to recover costs and expenses in excess of the application, handling, and late fees. The fees must be commensurate with costs or an average of the expenditures related to specific or routine activities.

(a) The department shall develop procedures for determining whether it is appropriate for either the obligor or the obligee to be responsible for payment of the fee. In developing the procedures, the department shall consider federal regulations promulgated under Title IV-D of the Social Security Act.

(b) In an action to establish paternity or to establish or enforce a child support obligation, whether in district court or by administrative process, the department must be awarded costs in the amount established in the fee schedule as part of any judgment, decree, or order whenever the department:

(i) is a prevailing party in the action; or

(ii) is not a party but incurs expenses and costs related to the action.

(6) The department may collect the fees awarded under this section by one of the following means:

(a) if the fee is owed by an obligor, the fee may be:

(i) collected through any remedy available to the department for the collection of child support arrearages; or

(ii) deducted from any payments made by the obligor before the payment is distributed to the obligee. Credit for the payment must be reduced by the amount of the deduction for the fee. The deduction for fees may not reduce any current support due to the obligee. The deduction for a late payment fee may not reduce any current or past-due support due to the obligee.

(b) if the fee is owed by the obligee, the fee may be collected separately through any remedy available to the department for the collection of child support or the department may withhold the fee amount out of any payment collected on behalf of the obligee. The obligor must receive full credit for the payment as if the withholding of fees did not occur.

(7) The department, upon a showing of necessity, may waive or defer any fee assessed under this section.

(8) The department may adopt rules necessary to implement fee schedules under this section.

(9) The department may collect fees allowed or awarded under other statutes or court order by any means allowed in subsection (6).

~~(9)~~(10) The fees and costs charged and collected under this section must be paid monthly into the state treasury to the credit of the child support enforcement division special revenue fund and must be accompanied by a detailed statement of the amounts collected."

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