SB-0521, As Passed Senate, February 20, 2014

SUBSTITUTE FOR

SENATE BILL NO. 521

     A bill to amend 1982 PA 295, entitled

"Support and parenting time enforcement act,"

by amending sections 31, 32, 33, 37, 44, and 45 (MCL 552.631,

552.632, 552.633, 552.637, 552.644, and 552.645), sections 31, 33,

44, and 45 as amended by 2009 PA 193, section 32 as amended by 2002

PA 567, and section 37 as amended by 1999 PA 160, and by adding

section 36; and to repeal acts and parts of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 31. (1) If a person is ordered to pay support under a

support order and fails or refuses to obey and perform the order,

and if an order of income withholding is inapplicable or

unsuccessful, a recipient of support or the office of the friend of

the court may commence a civil contempt proceeding by filing in the

circuit court a petition for an order to show cause why the

delinquent payer should not be held in contempt. as provided by

supreme court rule. If the payer fails to appear in response to an

order to show cause, at the hearing, the court shall do 1 or more

of the following as the court considers appropriate given the

information available at the hearing:

     (a) Find the payer in contempt for failure to appear.

     (b) Find the payer in contempt for the reasons stated in the

motion for the show cause hearing.under section 33.

     (c) Apply an enforcement remedy authorized under this act or

the friend of the court act for the nonpayment of support,

including suspending the payer's occupational license, driver's

license, or recreational or sporting license.

(c) (d) Issue a bench warrant for the payer's arrest requiring

that the payer be brought before the court without unnecessary

delay for further proceedings in connection with the show cause or

contempt proceedings.

(d) (e) Adjourn the hearing.contempt proceeding.

(e) (f) Dismiss the order to show cause contempt proceeding if

the court determines that the payer is not in contempt.

     (g) Enter an order that a law enforcement agency render any

vehicle owned by the payer temporarily inoperable, by booting or

another similar method, subject to release on deposit of an

appropriate bond.

     (h) Place the payer under the supervision of the office for a

term fixed by the court with reasonable conditions, including 1 or

more of the following:

     (i) Participating in a parenting program.

     (ii) Participating in drug or alcohol counseling.

     (iii) Participating in a work program.

     (iv) Seeking employment.

     (v) Participating in other counseling.

     (vi) Continuing compliance with a current support or parenting

time order.

     (vii) Entering into and compliance with an arrearage payment

plan.

     (2) If the court stays a commitment order under section 37,

the payer fails to satisfy the conditions of the order, and that

fact is brought to the court's attention by the friend of the

court, the court may issue a bench warrant for the payer's arrest

requiring the payer to be brought before the court without

unnecessary delay for further proceedings in connection with the

payer's contempt.

(3) (2) In a bench warrant issued under this section, the

court shall decree that the payer is subject to arrest if

apprehended or detained anywhere in this state and shall require

that, upon arrest, unless the payer deposits a cash performance

bond in the manner required by section 32, the payer shall remain

in custody until the time of the hearing. The court shall specify

in the bench warrant the cash performance bond amount. The court

shall set the cash performance bond at not less than $500.00 or 25%

of the arrearage, whichever is greater. At its own discretion, the

court may set the cash performance bond at an amount up to 100% of

the arrearage and add to the amount of the required deposit the

amount of the costs the court may require under subsection (3).

(4). If a payer is arrested on a felony warrant issued for a

violation of section 165 of the Michigan penal code, 1931 PA 328,

MCL 750.165, unless the payer deposits a cash performance bond in

the manner required by section 32, the court shall require that,

upon arrest, the payer remain in custody until the time of the

preliminary examination. Upon notification that a payer who has an

outstanding bench warrant under this section has been arrested or

arraigned on a felony warrant for a violation of section 165 of the

Michigan penal code, 1931 PA 328, MCL 750.165, the court may order

that the bench warrant be recalled.

(4) (3) If the court issues a bench warrant under this

section, except for good cause shown on the record, the court shall

order the payer to pay the costs related to the hearing, the

issuance of the warrant, the arrest, and any later hearings. Those

costs and costs ordered for failure to appear under section 32 or

44 shall be transmitted to the county treasurer for distribution as

required in section 2530 of the revised judicature act of 1961,

1961 PA 236, MCL 600.2530.

     (5) If the court issues a bench warrant under this section,

the court may enter an order that a law enforcement agency render

any vehicle owned by the payer temporarily inoperable, by booting

or another similar method, subject to release on deposit of an

appropriate bond.

     Sec. 32. (1) If a bench warrant was issued and the payer is

arrested in the county that issued the warrant or another county in

this state, the payer shall remain in custody until there is a

hearing or the payer posts an adequate cash performance bond. If

the payer cannot post the cash performance bond in the amount

stated in the bench warrant, the payer is entitled to a hearing

within 48 hours, excluding weekends and holidays. The issues to be

considered at a hearing required under this subsection are limited

to the payer's answer to the order to show cause contempt

proceeding and, if the payer was found in contempt, to further

proceedings related to the payer's contempt. If the hearing is not

held as provided in this subsection, the court shall review, based

on criteria prescribed in the Michigan court rules, the amount of

the cash performance bond to determine an amount that will ensure

the payer's appearance and shall set a date for a hearing to be

held under subsection (4) within the time limit prescribed in the

Michigan court rules.

     (2) The officer receiving a cash performance bond under

subsection (1) shall give to the arrested payer a receipt for the

cash performance bond on a form substantially as follows:

     "Date _________________________

     Received from ____________________ (referred to in this

receipt as "the payer") to assure the performance of the payer's

support obligation. The payer shall appear for hearing at a date

noticed to the payer by the court at the following address:

     __________________________________________________

     (address furnished by the payer for receipt of notice)

     The hearing is for the payer to answer to the show cause order

contempt proceeding and, if the payer was found in contempt, to

further proceedings related to the payer's contempt.

     If the payer fails to appear at the time and place indicated

in the court's notice, fails to submit to the jurisdiction of the

court, and fails to abide by an order of the court, the cash

performance bond shall be transmitted to the friend of the court or

to the state disbursement unit for payment of the arrearage to the

recipient of support and of costs to the court. If the payer

appears at the time and place indicated above and the court

determines that the payer owes an arrearage under the support order

that is the basis of the order to show cause contempt proceeding or

owes costs to the court, the cash performance bond deposited shall

be transmitted to the office of the friend of the court or to the

state disbursement unit for payment of the arrearage to the

recipient of support and of costs to the court. By depositing the

cash performance bond with the officer and accepting this receipt,

the recipient of this receipt waives a claim to the money under the

cash performance bond following its transmittal to the friend of

the court or to the SDU.

     ________________________________

     Officer:______________Dept.: _____".

     (3) The officer receiving a cash performance bond shall in

turn deposit the bond received under this section with the clerk of

the court that issued the bench warrant. If the payer deposits a

cash performance bond under this section, the date for a hearing to

be held under subsection (4) shall be set within the time limit

prescribed in the Michigan court rules.

     (4) At a hearing held after a payer deposits a cash

performance bond, the issues to be considered are limited to the

payer's answer to the order to show cause contempt proceeding and,

if the payer was found in contempt, to further proceedings related

to the payer's contempt. On the basis of the hearing, the court by

order shall determine how much of the cash performance bond

deposited under this section is to be transmitted to the friend of

the court or to the SDU for payment to 1 or more recipients of

support and to the county treasurer for distribution as provided in

section 31. The balance, if any, shall be returned to the person

who posted the cash performance bond on the payer's behalf.

     (5) If the payer fails to appear as required, the court shall

order the cash performance bond forfeited and transmit the bond to

the friend of the court or to the SDU for payment to 1 or more

recipients of support and to the county treasurer for distribution

as provided in section 31. In addition, the court may again issue a

bench warrant for the further appearance of the payer as provided

in section 31.

     (6) The court may set aside a finding of contempt under

section 31 if the court finds, based on the hearing under this

section, that the payer is in compliance with the court's order or

for other good cause shown.

     (7) Notwithstanding any other provision of this section, a

payer for whom a bench warrant has been issued may voluntarily

appear at the office of the friend of the court to answer the bench

warrant. The payer shall do either of the following:

     (a) Post the bond set by the court in the bench warrant.

     (b) Be taken promptly before the court for further

proceedings.

     (8) If a bond is posted under subsection (7)(a), the friend of

the court or the clerk of the court shall give a receipt to the

payer that substantially conforms to the requirements of subsection

(2). The receipt shall direct the payer to appear before the court

at a specific time and date. The friend of the court or the clerk

of the court shall notify a local law enforcement agency to remove

the bench warrant from the law enforcement information network as

provided by the C.J.I.S. policy council act, 1974 PA 163, MCL

28.211 to 28.215.

     Sec. 33. (1) The court may find a payer in contempt if the

court finds that the payer is in arrears and if the court is

satisfied that the payer has the capacity to pay out of currently

available resources all or some portion of the amount due under the

support order. In the absence of proofs to the contrary introduced

by the payer, the court shall presume that the payer has currently

available resources equal to 4 weeks of payments under the support

order. The court shall not find that the payer has currently

available resources of more than 4 weeks of payments without proof

of those resources by the office of the friend of the court or the

recipient of support. Upon finding a payer in contempt of court

under this section, the court may immediately enter an order that

does 1 or more of the following apply:

     (a) The court is satisfied that the payer has the capacity to

pay out of currently available resources all or some portion of the

amount due under the support order.

     (b) The court is satisfied that by the exercise of diligence

the payer could have the capacity to pay all or some portion of the

amount due under the support order and that the payer fails or

refuses to do so.

     (c) The payer has failed to obtain a source of income and has

failed to participate in a work activity after referral by the

friend of the court.

     (2) Upon finding a payer in contempt of court under this

section, the court may immediately enter an order that does 1 or

more of the following:

     (a) Commits the payer to the county jail or an alternative to

jail.

     (b) Commits the payer to the county jail or an alternative to

jail with the privilege of leaving the jail or other place of

detention during the hours the court determines, and under the

supervision the court considers, necessary for the purpose of

allowing the payer to go to and return from his or her place of

employment.satisfy the terms and conditions imposed under section

37 if the payer's release is necessary for the payer to comply with

those terms and conditions.

     (c) Commits the payer to a penal or correctional facility in

this state that is not operated by the state department of

corrections.

     (d) If the payer holds an occupational license, driver's

license, or recreational or sporting license, conditions a

suspension of the payer's license, or any combination of the

licenses, upon noncompliance with an order for payment of the

arrearage in 1 or more scheduled installments of a sum certain. A

court shall not order the sanction authorized by this subdivision

unless the court finds that the payer has accrued an arrearage of

support payments in an amount greater than the amount of periodic

support payments payable for 2 months under the payer's support

order.

     (d) Apply any other enforcement remedy authorized under this

act or the friend of the court act for the nonpayment of support if

the payer's arrearage qualifies and the evidence supports applying

that remedy.

     (e) Orders the payer to participate in a work activity. This

subdivision does not alter the court's authority to include

provisions in an order issued under this section concerning a

payer's employment or his or her seeking of employment as that

authority exists on August 10, 1998.

     (f) If available within the court's jurisdiction, orders the

payer to participate in a community corrections program established

as provided in the community corrections act, 1988 PA 511, MCL

791.401 to 791.414.

     (g) Except as provided by federal law and regulations, orders

the parent to pay a fine of not more than $100.00. A fine ordered

under this subdivision shall be deposited in the friend of the

court fund created in section 2530 of the revised judicature act of

1961, 1961 PA 236, MCL 600.2530.

     (h) Places the payer under the supervision of the office for a

term fixed by the court with reasonable conditions, including, but

not limited to, 1 or more of the following:

     (i) Participating in a parenting program.

     (ii) Participating in drug or alcohol counseling.

     (iii) Participating in a work program.

     (iv) Seeking employment.

     (v) Participating in other counseling.

     (vi) Continuing compliance with a current support or parenting

time order.

     (vii) Entering into and compliance with an arrearage payment

plan.

     (2) If the court enters an order under subsection (1)(d) and

the payer fails to comply with the arrearage payment schedule,

after notice and opportunity for a hearing, the court shall order

suspension of the payer's license or licenses with respect to which

the order under subsection (1)(d) was entered and shall proceed

under section 30.

     (2) In the absence of proof to the contrary introduced by the

payer, the court shall presume that the payer has currently

available resources equal to 1 month of payments under the support

order. The court shall not find that the payer has currently

available resources of more than 1 month of payments without proof

of those resources by the office of the friend of the court or the

recipient of support.

     Sec. 36. In addition to any remedy or sanction provided in

section 31 or 33, the court may assess the payer the actual

reasonable expense of the friend of the court in bringing any

enforcement action for noncompliance with a spousal support order.

     Sec. 37. (1) An order of commitment under section 33 or 35

shall be entered only if other remedies appear unlikely to correct

the payer's failure or refusal to pay support.

     (2) An order of commitment under section 33 33(1)(a) shall

separately state both of the following:

     (a) The amount of the arrearage under the support order.

     (b) The the amount to be paid by the payer in order to be

released from the order of commitment, which amount may not be

greater than the payer's currently available resources as found by

the court.

     (3) An order of commitment under section 35 33(1)(b) or (c)

shall separately state both of the following:

     (a) The amount of arrearage under the support order.

     (b) The amount to be paid in order to be released from the

order of commitment.the conditions that constitute diligence in

order to be released from the order of commitment, which conditions

must be within the payer's ability to perform.

     (4) A commitment shall continue until the amount ordered to be

paid under subsection (2)(b) or (3)(b) is paid payer performs the

conditions set forth in the order of commitment but shall not

exceed 45 days for the first adjudication of contempt or 90 days

for a subsequent adjudication of contempt.

     (5) The court may further direct that a portion or all of the

earnings of the payer in the facility or institution shall be paid

to and applied for support until the payer complies with the order

of the court, until the payer is released pursuant according to

this section from an order of commitment, or until the further

order of the court. If it appears that the department has

contributed towards the support of the minor child or children

during the period of noncompliance with the order of the court, the

court, in the contempt proceedings, may order all or part of a lump

sum payment to the office of the friend of the court, state

disbursement unit, or county clerk to be paid to the department not

to exceed the amount of the contribution made by the department.

The court may order the money paid to the person or persons

entitled to the money in weekly or monthly installments by the

office of the friend of the court, SDU, or county clerk to the

extent that the court considers installments necessary for support.

     (6) Notwithstanding the length of commitment imposed under

this section, the court may release a payer who is unemployed if

committed to a county jail under this section and who finds

employment if either of the following applies:

     (a) The payer is self-employed, completes 2 consecutive weeks

at his or her employment, and makes a support payment as required

by the court.

     (b) The payer is employed and completes 2 consecutive weeks at

his or her employment and an order of income withholding is

effective.

     (7) If the court enters a commitment order under subsection

33(1)(b) or (c), and the court finds that the payer by performing

the conditions set forth in the order of commitment will have the

ability to pay specific amounts, the court may establish a specific

amount for the payer to pay and do any of the following:

     (a) Stay the order of commitment conditioned upon the payer's

making the specified payments.

     (b) Stay the order of commitment and order that upon default

of the payer in making a specified payment, the payer shall be

brought before the court for further proceedings in connection with

the contempt proceedings that may include committing the payer for

the number of days that the payer would have been committed had the

court not stayed the order.

     (c) Give credit toward the payer's potential maximum

commitment for each specified payment made in compliance with the

order of commitment.

     (8) If the court enters a commitment order under subsection

33(1)(b) or (c), the court may do any of the following:

     (a) Stay the order of commitment conditioned upon the payer's

complying with the conditions set forth in the order of commitment.

     (b) Stay the order of commitment and order that upon default

of the payer to satisfy a condition of the order, the payer shall

be brought before the court for further proceedings in connection

with the contempt proceedings that may include committing the payer

for the number of days the payer would have been committed had the

order not been stayed.

     (c) Give credit toward the payer's potential maximum

commitment for complying with conditions in the order.

     (d) Incarcerate the payer with the privilege of leaving jail

to comply with conditions in the order of commitment.

     Sec. 44. (1) If the office of the friend of the court

determines that a procedure for resolving a parenting time dispute

authorized under section 41 other than a civil contempt proceeding

is unsuccessful in resolving the parenting time dispute, the office

of the friend of the court shall commence a civil contempt

proceeding to resolve the dispute by filing with the circuit court

a petition for an order to show cause why either parent who has

violated a parenting time order should not be held in contempt. The

office of the friend of the court shall notify the parent who is

the subject of the petition. as provided by the supreme court rule.

The contempt proceeding notice shall include, either in the notice

or by reference to another document attached to the notice, a

statement of the allegations upon which the dispute is based and at

least all of the following:

     (a) A list of each possible sanction if the parent is found in

contempt.

     (b) The right of the parent to a hearing on a proposed

modification of parenting time if requested within 21 days after

the date of the notice, as provided in section 45.

     (2) If the court finds that either parent has violated a

parenting time order without good cause, the court shall find that

parent in contempt and may do 1 or more of the following:

     (a) Require additional terms and conditions consistent with

the court's parenting time order.

     (b) After notice to both parties and a hearing, if requested

by a party, on a proposed modification of parenting time, modify

the parenting time order to meet the best interests of the child.

     (c) Order that makeup parenting time be provided for the

wrongfully denied parent to take the place of wrongfully denied

parenting time.

     (d) Order the parent to pay a fine of not more than $100.00.

     (e) Commit the parent to the county jail or an alternative to

jail.

     (f) Commit the parent to the county jail or an alternative to

jail with the privilege of leaving the jail or other place of

detention during the hours the court determines necessary, and

under the supervision the court considers necessary, for the

purpose of allowing the parent to go to and return from his or her

place of employment.

     (g) If the parent holds an occupational license, driver's

license, or recreational or sporting license, condition the

suspension of the license, or any combination of the licenses, upon

noncompliance with an order for makeup and ongoing parenting time.

     (h) If available within the court's jurisdiction, order the

parent to participate in a community corrections program

established as provided in the community corrections act, 1988 PA

511, MCL 791.401 to 791.414.

     (i) Place the parent under the supervision of the office for a

term fixed by the court with reasonable conditions, including 1 or

more of the following:

     (i) Participating in a parenting program.

     (ii) Participating in drug or alcohol counseling.

     (iii) Participating in a work program.

     (iv) Seeking employment.

     (v) Participating in other counseling.

     (vi) Continuing compliance with a current support or parenting

time order.

     (vii) Entering into and compliance with an arrearage payment

plan.

     (viii) Facilitating makeup parenting time.

     (3) The court shall state on the record the reason the court

is not ordering a sanction listed in subsection (2). For the

purpose of subsection (2), "good cause" includes, but is not

limited to, consideration of the safety of a child or party who is

governed by the parenting time order.

     (4) A commitment under subsection (2)(e) or (f) shall not

exceed 45 days for the first finding of contempt or 90 days for

each subsequent finding of contempt. A parent committed under

subsection (2)(e) or (f) shall be released if the court has

reasonable cause to believe that the parent will comply with the

parenting time order.

     (5) If a parent fails to appear in response to an order to

show cause, a contempt proceeding, the court may issue a bench

warrant requiring that the parent be brought before the court

without unnecessary delay to show cause why the parent should not

be held in contempt. Except for good cause shown on the record, the

court shall further order the parent to pay the costs of the

hearing, the issuance of the warrant, the arrest, and any later

hearings, which costs shall be transmitted to the county treasurer

for distribution as provided in section 31. If the hearing cannot

be held immediately after the parent's arrest, the parent may be

released if a bond in the amount of the fines, costs, and sanctions

imposed under this section and any additional amount the court

determines is necessary to secure the parent's appearance is

deposited with the court.

     (6) If the court finds that a party to a parenting time

dispute has acted in bad faith, the court shall order the party to

pay a sanction of not more than $250.00 for the first time the

party is found to have acted in bad faith, not more than $500.00

for the second time, and not more than $1,000.00 for the third or a

subsequent time. A sanction ordered under this subsection shall be

deposited in the friend of the court fund created in section 2530

of the revised judicature act of 1961, 1961 PA 236, MCL 600.2530,

and shall be used to fund services that are not title IV-D

services.

     (7) A fine ordered under subsection (2), costs ordered under

subsection (5), or a sanction ordered under subsection (6) is a

judgment at the time the order is entered.

     (8) If the court finds that a party to a parenting time

dispute has acted in bad faith, the court shall order the party to

pay the other party's costs.

     (9) If the court issues a bench warrant under this section,

the court may enter an order that a law enforcement agency render

any vehicle owned by the payer temporarily inoperable, by booting

or another similar method, subject to release on deposit of an

appropriate bond.

     Sec. 45. (1) If the court enters an order under section

44(2)(g) and the parent fails to comply with the makeup and ongoing

parenting time schedule, the court shall find the parent in

contempt and, after notice and an opportunity for a hearing, may

suspend the parent's license or licenses with respect to which the

order under section 44(2)(g) was entered and proceed under section

30.

     (2) After entry of a suspension order under subsection (1), a

parent may agree to a makeup parenting time schedule. The court may

order a makeup parenting time schedule if the parent demonstrates a

good faith effort to comply with the parenting time order. If the

court orders a makeup parenting time schedule, the court or the

friend of the court, as applicable, shall do the following:

     (a) The court shall enter an order rescinding the suspension

order that is effective as provided in section 4 of the regulated

occupation support enforcement act, 1996 PA 236, MCL 338.3434, or

section 43559 of the natural resources and environmental protection

act, 1994 PA 451, MCL 324.43559. Within 7 business days after entry

of the order rescinding the suspension order, the office of the

friend of the court shall send a copy of the order rescinding the

suspension order to the licensing agency.

     (b) The friend of the court, on verification by the clerk of

the court that the driver's license clearance fee required by

section 321c of the Michigan vehicle code, 1949 PA 300, MCL

257.321c, has been paid, shall provide a certificate to the payer

stating that the payer is in compliance with the support order.

     (3) Within 21 days after the date of the notice under section

44, a parent who is notified of a petition to show cause contempt

hearing under section 44 may request a hearing on a proposed

modification of parenting time. The court shall hold the requested

hearing unless the parenting time dispute is resolved by other

means. The court shall combine the hearing prescribed by this

subsection with the hearing on the order to show cause unless the

court finds for good cause shown on the record that the hearings

should be held separately. If the court finds that the hearings

should be held separately, the hearing on a proposed modification

of parenting time shall be held before the contempt hearing. on the

order to show cause.

     Enacting section 1. Section 35 of the support and parenting

time enforcement act, 1982 PA 295, MCL 552.635, is repealed.