September 19, 2013, Introduced by Senators EMMONS and COLBECK and referred to the Committee on Families, Seniors and Human Services.
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.
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 or 35.
(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.
(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.
(e) Adjourn the hearing.
(f)
Dismiss the order to show cause hearing
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) 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). 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.
(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.
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 1
month of payments under the
support order. The court shall not find that the payer has
currently
available resources of more than 4 weeks 1 month 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:
(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.
(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.
(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 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.
Sec. 36. In addition to any remedy or sanction provided in
section 31, 33, or 35, the court shall 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 shall separately
state both of the following:
(a) The amount of the arrearage under the support order.
(b) 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 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.
(4) A commitment shall continue until the amount ordered to be
paid under subsection (2)(b) or (3)(b) is paid but shall not exceed
45 days for the first adjudication of contempt or 90 days for a
subsequent adjudication of contempt. A commitment may be for
consecutive days, specific days, or a combination of the 2 and may
be conditioned on specific amounts being paid by specific dates.
(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.
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. scheduling
a hearing before the court.
The hearing notice may include a subpoena as determined under
supreme court rules, may be made part of an order to appear, or may
be accompanied by a separate subpoena. The hearing 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 a subpoena or
an
order to show cause, appear,
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.
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.