BILL REQ. #:  Z-0792.10 

Read first time 01/20/10.   Referred to Committee on Judiciary.

     AN ACT Relating to updating provisions concerning the modification, review, and adjustment of child support orders to improve access to justice and to ensure compliance with federal requirements; and amending RCW 26.09.170 and 26.09.175.

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

Sec. 1   RCW 26.09.170 and 2008 c 6 s 1017 are each amended to read as follows:
     (1) Except as otherwise provided in ((subsection (7) of)) RCW 26.09.070(7), the provisions of any decree respecting maintenance or support may be modified: (a) Only as to installments accruing subsequent to the petition for modification or motion for adjustment except motions to compel court-ordered adjustments, which shall be effective as of the first date specified in the decree for implementing the adjustment; and, (b) except as otherwise provided in subsections (5), (6), (9), and (10) of this section, only upon a showing of a substantial change of circumstances. The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.
     (2) 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 or registration of a new domestic partnership of the party receiving maintenance.
     (3) Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child or by the death of the parent obligated to support the child.
     (4) Unless expressly provided by an order of the superior court or a court of comparable jurisdiction, the support provisions of the order are terminated upon the marriage or registration of a domestic partnership to each other of parties to a paternity order, or upon remarriage or registration of a domestic partnership to each other of parties to a decree of dissolution. The remaining provisions of the order, including provisions establishing paternity, remain in effect.
     (5) An order of child support may be modified one year or more after it has been entered without showing a substantial change of circumstances:
     (a) If the order in practice works a severe economic hardship on either party or the child;
     (b) If a party requests an adjustment in an order for child support which was based on guidelines which determined the amount of support according to the child's age, and the child is no longer in the age category on which the current support amount was based;
     (c) If a child is still in high school, upon a finding that there is a need to extend support beyond the eighteenth birthday to complete high school; or
     (d) To add an automatic adjustment of support provision consistent with RCW 26.09.100.
     (6) An order or decree entered prior to June 7, 1984, may be modified without showing a substantial change of circumstances if the requested modification is to:
     (a) Require health insurance coverage for a child named therein; or
     (b) Modify an existing order for health insurance coverage.
     (7) An obligor's voluntary unemployment or voluntary underemployment, by itself, is not a substantial change of circumstances.
     (8)(a) The department of social and health services may file an action to modify or adjust an order of child support if public assistance money is being paid to or for the benefit of the child ((and the child support order is twenty-five percent or more below the appropriate child support amount set forth in the standard calculation as defined in RCW 26.19.011 and reasons for the deviation are not set forth in the findings of fact or order. The determination of twenty-five percent or more shall be based on the current income of the parties and the department shall not be required to show a substantial change of circumstances if the reasons for the deviations were not set forth in the findings of fact or order)).
     (b) The department of social and health services may file an action to modify or adjust an order of child support in a nonassistance case when services have been requested by another state or jurisdiction.
     (c) The department of social and health services may also file an action to modify or adjust an order of child support in a nonassistance case when services have been requested by a party to the order, and the department has determined that the case meets the review criteria as set forth by rule.
     (d) The department has rule-making authority to enact rules consistent with 42 U.S.C. Sec. 666(a)(10)(C) and to implement regulations required under Parts 45 C.F.R. 302, 303, 304, 305, and 308.
     (9)(a) All child support decrees may be adjusted once every twenty-four months based upon changes in the income of the parents without a showing of substantially changed circumstances. Either party may initiate the adjustment by filing a motion and child support worksheets.
     (b) A party may petition for modification in cases of substantially changed circumstances under subsection (1) of this section at any time. However, if relief is granted under subsection (1) of this section, twenty-four months must pass before a motion for an adjustment under (a) of this subsection may be filed.
     (c) If, pursuant to (a) of this subsection or subsection (10) of this section, the court adjusts or modifies a child support obligation by more than thirty percent and the change would cause significant hardship, the court may implement the change in two equal increments, one at the time of the entry of the order and the second six months from the entry of the order. Twenty-four months must pass following the second change before a motion for an adjustment under (a) of this subsection may be filed.
     (d) A parent who is receiving transfer payments who receives a wage or salary increase may not bring a modification action pursuant to subsection (1) of this section alleging that increase constitutes a substantial change of circumstances.
     (e) The department of social and health services may file an action at any time to modify an order of child support in cases of substantially changed circumstances ((if)) whether or not public assistance money is being paid to or for the benefit of the child. The determination of the existence of substantially changed circumstances by the department that lead to the filing of an action to modify the order of child support is not binding upon the court.
     (10) An order of child support may be adjusted twenty-four months from the date of the entry of the decree or the last adjustment or modification, whichever is later, based upon changes in the economic table or standards in chapter 26.19 RCW.
     (11) If testimony other than affidavit is required in any proceeding under this section, a court of this state shall permit a party or witness to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means, unless good cause is shown.

Sec. 2   RCW 26.09.175 and 2002 c 199 s 2 are each amended to read as follows:
     (1) A proceeding for the modification of an order of child support shall commence with the filing of a petition and worksheets. The petition shall be in the form prescribed by the administrator for the courts. There shall be a fee of twenty dollars for the filing of a petition for modification of dissolution.
     (2)(a) The petitioner shall serve upon the other party the summons, a copy of the petition, and the worksheets in the form prescribed by the administrator for the courts. If the modification proceeding is the first action filed in this state, service shall be made by personal service. If the decree to be modified was entered in this state, service shall be by personal service or by any form of mail requiring a return receipt. Proof of service shall be filed with the court.
     (b) If the support obligation has been assigned to the state pursuant to RCW 74.20.330 or the state has a subrogated interest under RCW 74.20A.030, the summons, petition, and worksheets shall also be served on the attorney general; except that notice shall be given to the office of the prosecuting attorney for the county in which the action is filed in lieu of the office of the attorney general in those counties and in the types of cases as designated by the office of the attorney general by letter sent to the presiding superior court judge of that county. ((Proof of service shall be filed with the court.))
     (3) ((The)) (a) As authorized under RCW 26.09.170, the department of social and health services may file an action to modify an order of child support if public assistance money is being paid to or for the benefit of the child.
     (b) The department of social and health services may file an action to modify an order of child support in a nonassistance case when services have been requested by another state or jurisdiction, and the department has determined that the case meets the review criteria as set forth by rule.
     (c) The department of social and health services may also file an action to modify an order of child support in a nonassistance case when services have been requested by a party to the order, and the department has determined that the case meets the review criteria as set forth by rule.
     (d) The department has rule-making authority to enact rules consistent with 42 U.S.C. Sec. 666(a)(10)(C) and to implement regulations required under Parts 45 C.F.R. 302, 303, 304, 305, and 308.
     (4) A responding party's answer and worksheets shall be served and the answer filed within twenty days after service of the petition or sixty days if served out of state. ((The)) A responding party's failure to file an answer within the time required shall result in entry of a default judgment for the petitioner.
     (((4))) (5) At any time after responsive pleadings are filed, ((either)) any party may schedule the matter for hearing.
     (((5))) (6) Unless ((both)) all parties stipulate to arbitration or the presiding judge authorizes oral testimony pursuant to subsection (((6))) (7) of this section, a petition for modification of an order of child support shall be heard by the court on affidavits, the petition, answer, and worksheets only.
     (((6))) (7) A party seeking authority to present oral testimony on the petition to modify a support order shall file an appropriate motion not later than ten days after the time of notice of hearing. Affidavits and exhibits setting forth the reasons oral testimony is necessary to a just adjudication of the issues shall accompany the petition. The affidavits and exhibits must demonstrate the extraordinary features of the case. Factors which may be considered include, but are not limited to: (a) Substantial questions of credibility on a major issue; (b) insufficient or inconsistent discovery materials not correctable by further discovery; or (c) particularly complex circumstances requiring expert testimony.
     (8) If testimony other than affidavit is required in any proceeding under this section, a court of this state shall permit a party or witness to be deposed or to testify under penalty of perjury by telephone, audiovisual means, or other electronic means, unless good cause is shown.