§ 110-136.4. Implementation of withholding in IV-D cases. - North Carolina Statutes

§ 110‑136.4.  Implementation of withholding inIV‑D cases.

(a)        Withholding based on arrearages or obligor's request.

(1)        Advance notice of withholding. When an obligor in a IV‑Dcase becomes subject to income withholding, the obligee shall, after verifyingthe obligor's current employer or other payor, wages or other disposableincome, and mailing address, serve the obligor with advance notice ofwithholding in accordance with G.S. 1A‑1, Rule 4, Rules of CivilProcedure.

(2)        Contents of advance notice. The advance notice to theobligor shall contain, at a minimum, the following information:

a.         Whether the proposed withholding is based on the obligor'sfailure to make legally obligated child support, alimony or postseparationsupport payments on the obligor's request for withholding, on the obligee'srequest for withholding, or on the obligor's eligibility for withholding underG.S. 110‑136.3(b)(3);

b.         The amount of overdue child support, overdue alimony orpostseparation support payments, the total amount to be withheld, and when thewithholding will occur;

c.         The name of each child or person for whose benefit the childsupport, alimony or postseparation support payments are due and informationsufficient to identify the court order under which the obligor has a duty tosupport the child, spouse, or former spouse;

d.         The amount and sources of disposable income;

e.         That the withholding will apply to the obligor's wages orother sources of disposable income from current payors and all subsequentpayors once the procedures under this section are invoked;

f.          An explanation of the obligor's rights and responsibilitiespursuant to this section;

g.         That withholding will be continued until terminated pursuantto G.S. 110‑136.10.

(3)        Contested withholding. The obligor may contest thewithholding only on the basis of a mistake of fact, except that G.S. 110‑129(10)(a)is not applicable if withholding is based on the obligor's or obligee's requestfor withholding. To contest the withholding, the obligor must, within 10 days ofreceipt of the advance notice of withholding, request a hearing in the countywhere the support order was entered before the district court and give noticeto the obligee specifying the mistake of fact upon which the hearing request isbased. If the asserted mistake of fact can be resolved by agreement between theobligee and the obligor, no hearing shall occur. Otherwise, a hearing shall beheld and a determination made, within 30 days of the obligor's receipt of theadvance notice of withholding, as to whether the asserted mistake of fact isvalid. No withholding shall occur pending the hearing decision. The failure tohold a hearing within 30 days shall not invalidate an otherwise properlyentered order. If it is determined that a mistake of fact exists, nowithholding shall occur. Otherwise, within 45 days of the obligor's receipt ofthe advance notice of withholding, the obligee shall serve the payor, pursuantto G.S. 1A‑1, Rule 5, Rules of Civil Procedure, with notice of hisobligation to withhold, and shall mail a copy of such notice to the obligor andfile a copy with the clerk. In the event of appeal, withholding shall not bestayed. If the appeal is concluded in favor of the obligor, the obligee shallpromptly repay sums wrongfully withheld and notify the payor to ceasewithholding.

(4)        Uncontested withholding. If the obligor does not contest thewithholding within the 10‑day response period, the obligee shall servethe payor, pursuant to G.S. 1A‑1, Rule 5, Rules of Civil Procedure, withnotice of his obligation to withhold, and shall mail a copy of such notice tothe obligor and file a copy with the clerk.

(5)        Payment not a defense to withholding. The payment of overduesupport shall not be a basis for terminating or not implementing withholding.

(6)        Inability to implement withholding. When an obligor issubject to withholding, but withholding under this section cannot beimplemented because the obligor's location is unknown, because the extent andsource of his disposable income cannot be determined, or for any other reason,the obligee shall either request the clerk of superior court to initiateenforcement proceedings under G.S. 15A‑1344.1(d) or G.S. 50‑13.9(d)or take other appropriate available measures to enforce the support obligation.

(b)        Immediate income withholding. When a new or modified childsupport order is entered, the district court judge shall, after hearingevidence regarding the obligor's disposable income, place the obligor under anorder for immediate income withholding. The IV‑D agency shall serve thepayor pursuant to G.S. 1A‑1, Rule 5, Rules of Civil Procedure, with anotice of his obligation to withhold, and shall mail a copy of such notice tothe obligor and file a copy with the clerk. If information is unavailableregarding an obligor's disposable income, or the obligor is unemployed, or anagreement is reached between both parties which provides for an alternativearrangement, immediate income withholding shall not apply. The obligor,however, is subject to income withholding pursuant to G.S. 110‑136.4(a).

(c)        Subsequent payors. If the obligor changes employment orsource of disposable income, notice to subsequent payors of their obligation towithhold shall be served as required by G.S. 1A‑1, Rule 5, Rules of CivilProcedure. Copies of such notice shall be filed with the clerk of court andserved upon the obligor by first class mail.

(d)        Multiple withholdings. The obligor must notify the obligeeif the obligor is currently subject to another withholding for child support.In the case of two or more withholdings against one obligor, the obligee orobligees shall attempt to resolve any conflict between the orders in a mannerthat is fair and equitable to all parties and within the limits specified byG.S. 110‑136.6. If the conflict cannot be so resolved, an injured party,upon request, shall be granted a hearing in accordance with the procedurespecified in G.S. 110‑136.4(c). The conflict between the withholdingorders shall be resolved in accordance with G.S. 110‑136.7.

(e)        Modification of withholding. When an order for withholdinghas been entered under this section, the obligee may modify the withholdingbased on changed circumstances. The obligee shall proceed as is provided inthis section.

(f)         Applicability of section. The provisions of this sectionapply to IV‑D cases only. (1985 (Reg. Sess.,1986), c. 949, s. 2; 1989, c. 601, s. 3; 1997‑433, s. 6.2; 1998‑17,s. 1; 1998‑176, s. 5; 2001‑237, s. 4.)