Request By:
The Honorable Ken Corey, Judge
Jefferson Circuit Court
Jefferson County Courthouse
527 West Jefferson Street
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Elizabeth Marshall, Assistant Attorney General
In your letter to the Attorney General you ask the following question:
Do the recent amendments to KRS Chapter 205, by House Bill 586, Section 5, mandate automatic wage assignment for child support ordered from all decrees of dissolution of marriage, in addition to child support collected by county attorneys relating to Cabinet for Human Resources cases?
House Bill 586, Section 5, codified as KRS 205.741(1), to which you refer, reads as follows:
After July 15, 1988, each support order entered by a court of competent jurisdiction shall provide for income withholding, which shall begin immediately except for good cause shown. If good cause is shown, income withholding shall take effect when the obligor does not provide support in the amount due and an arrearage has accrued that is equal to the amount of support payable for one (1) month, as determined by the cabinet or its designee.
As you have noted, KRS Chapter 205 relates to child support collection processed through the contracting agent of the Cabinet for Human Resources under the IV-D system, often the county attorney.
In addition to KRS 205.741, KRS 405.465, as amended by House Bill 586, is applicable to the question of mandatory wage assignment. KRS 405.465(1) reads as follows:
(1) If, prior to July 15, 1988, the court has ordered either or both parents to pay any amount for the support of a minor child and an arrearage has accrued that is equal to the amount of support payable for one (1) month, upon a finding by the court that an arrearage has accrued that is equal to the amount of support payable for one (1) month, the court shall order either parent or both parents to assign to the domestic relations clerk of the county or other officer designated by the court to receive the payment, that portion of salary or wages of either parent due and to be due in the future as will be sufficient to pay the amount ordered by the court, plus interest at the legal rate on the arrearage, if any, for the support, maintenance and education of the minor child. If the support order was issued after July 15, 1988, assignment of support payments shall begin immediately, except for good cause shown as determined by the court. If good cause is shown, income withholding shall take effect when the obligor does not provide support in the amount due and an arrearage has accrued that is equal to the amount of support payable for one (1) month, as determined by the cabinet or its designee. (Emphasis added.)
KRS 405.465, formerly KRS 405.035, enacted in 1972, authorized wage withholding by the court for the collection of child support payments. This judicial wage assignement provision was one of the early enactments in KRS Chapter 405. Subsequent additions to the chapter established the administrative wage withholding authority of the Cabinet for Human Resources. These additions obscured the distinctiveness of KRS 405.465 as a judicial rather than an administrative procedure. Indeed, the short title of KRS 405.400 et seq. remained the "Kentucky Administrative Process for Child Support Act" until the 1988 General Assembly repealed this short title by Section 35 of House Bill 586, emphasizing that Chapter 405 is not devoted strictly to the administrative process. KRS 405.465 is a judicial procedure applicable to all decrees of dissolution. As amended by House Bill 586, Section 22, the court is given the clear directive that wage withholding is to be immediate and automatic in all cases of dissolution in which child support is ordered after July 15, 1988.
Both KRS 205.741 and KRS 405.465 provide for a "good cause" exception to automatic wage withholding. "Good cause" is not defined, but is left to judicial interpretation.
Also pertinent to the question of mandatory wage assignment is a consideration of the import of KRS 403.215, amended by House Bill 586. It reads as follows:
After July 15, 1988, [sic] any new or modified order or decree which contains provisions for the support of a minor child or minor children, the order or decree shall include a provision that if an arrearage accrues that is equal to the amount of support payable for (1) one month, a wage assignment pursuant to KRS 405.465 may issue.
In short, KRS 403.215 requires that notice of a wage assignment be included in any new or modified order or decree after July 15, 1988, which contains provisions for child support. Does the language of KRS 403.215 which states that "a wage assignment pursuant to KRS 405.465 may issue," equivocate on the mandate of KRS 205.741 and KRS 405.465 and why would notice be necessary if a wage assignment is automatic? (Emphasis added.) There is an apparent conflict between KRS 403.215 and the expressed directive for immediate and automatic wage withholding of KRS 205.741 and KRS 405.465.
It is a well-established rule of statutory construction that apparent conflicts between statutes must be harmonized to give effect to both statutes and to the legislative intent. KRS 446.080(1);
Wesley. v. Board of Education of Nicholas County, Ky., 403 S.W.2d 28 (1966),
Ledford v. Faulkner, Ky., 661 S.W.2d 475 (1983). House Bill 586, as a whole, focuses upon methods for strengthening the enforcement and collection of child support. The legislative intent of House Bill 586 is clearly expressed in the mandated wage withholding in IV-D cases by KRS 205.741, and in all other cases by KRS 405.465.
With this clear expression of legislative intent it would be incongruous to construe KRS 403.215 as a departure from the mandate for immediate and automatic wage withholding. By construing KRS 403.215 as a requirement to give notice within the order or decree of dissolution that a wage assignment may issue upon an arrearage of one (1) month, effect is given to KRS 403.215 while harmonizing it with the manadatory provisions of KRS 205.741 and KRS 405.465.
KRS 403.215 provides for notice in all new or modified orders or decrees containing a provision for child support after July 15, 1988. The inclusion of this notice serves to eliminate disputes on the subsequent administrative or judicial wage assignment issued in the event of an arrearage, whether in good cause cases in which no wage assignment was ordered or in any other circumstance in which an arrearage has accrued.
In summary, KRS 205.741 and KRS 405.465 require immediate and automatic wage assignment in all child support orders issued after July 15, 1988, unless the court has found in its judicial discretion that the basis exists for a good cause exception. In addition, KRS 403.215 requires the inclusion within every order or decree of dissolution containing provisions for child support issued after July 15, 1988, the notice that a wage assignment may issue if an arrearage accrues equal to one (1) month.
We hope this response clarifies recent changes in the court's responsibility in cases of dissolution in which child support is ordered. As you are aware, the enforcement of child support is a repetitive and time-consuming process for the judiciary. One of the objectives of this legislation is to reduce judicial effort by making provision for the withholding of income when the parties are before the court at the time the decree of dissolution is entered.
If we can be of further assistance, please do not hesitate to contact this Office.