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COMMITTEE REPORT
April 23, 2008
S. 881
S. Printed 4/23/08--S.
Read the first time January 8, 2008.
To whom was referred a Bill (S. 881) to amend the Code of Laws of South Carolina, 1976, by adding Section 20-7-865 so as to authorize the family court to issue a rule to show, etc., respectfully
That they have duly and carefully considered the same and recommend that the same do pass with amendment:
Amend the bill, as and if amended, by striking all after the enacting language and inserting therein the following:
/ SECTION 1. Subarticle 3, Article 9, Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-865. (A) If a court order requires a parent to provide monetary support for a child, including, but not limited to payment of health, medical, or educational expenses, but excluding periodic payment of funds for the support of the child, and the parent fails to do so, the other parent or the child's custodial guardian may petition the court for relief using an authorized affidavit and supporting documents setting forth the existence of the expense and the failure of the parent to pay the required support.
(1) Within sixty days of approval by the Governor of this act, Court Administration shall prepare the authorized affidavit form and make it available to petitioners seeking relief under the provisions of this section. The authorized affidavit form must contain the following information:
(a) the names and addresses of the petitioner and the parent alleged to have failed to make the support payment;
(b) the amount and nature of the support payment the parent allegedly failed to make;
(c) the date and manner in which the petitioner notified the alleged non-paying parent and requested payment;
(d) the response, if any, of the alleged non-paying parent upon receiving the petitioner's request for payment; and
(e) if the matter relates to an expense covered by an insurance policy, whether an insurance claim has been filed, and if so, the insurance carrier's response.
(2) The authorized affidavit must be accompanied by the following documents:
(a) a copy of the court order requiring the parent to provide monetary support for a child excluding periodic payments of funds for support;
(b) a certified copy of any bill, invoice, or other written document, dated within sixty days of the filing of the petition, substantiating the expense the petitioner claims the parent is required to pay;
(c) a copy of any written request for payment of the support by the petitioner to the alleged non-paying parent;
(d) a copy of any written reply from the alleged non-paying parent to the parent responding to the petitioner's request for payment;
(e) if the matter relates to an expense covered by an insurance policy, a copy of all correspondence to and from the insurance carrier pertaining to payment of the claim; and
(f) the current mailing address of the alleged non-paying parent.
(3) Upon receipt of a petition accompanied by an authorized affidavit, the court shall issue a rule to show cause to the alleged non-paying parent for nonpayment of the required support. The parent must be served in accordance with the South Carolina Rules of Civil Procedure. The court also shall provide notice of the hearing to the petitioner.
(B)(1) At the hearing on the rule to show cause, the order requiring the monetary support, the authorized affidavit, and the supporting documentation required in subsection (A)(2), constitute prima facie evidence, without further proof or foundation, that the parent is in violation of the court order requiring the support.
(2) Once a prima facie case is established, the burden is on the parent asserting a defense to establish the defense.
(C) If the family court determines that the petitioner's claim for support is frivolous, or that the petitioner knowingly or intentionally made or filed a false authorized affidavit, or knowingly or intentionally submitted false documents in support of the petition, the court may award the parent reasonable attorney's fees and other litigation costs reasonably incurred in the defense of the petition."
SECTION 2. This act takes effect ninety days after approval by the Governor. /
Amend title to conform.
JAMES H. RITCHIE, JR. for Committee.
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING SECTION 20-7-865 SO AS TO AUTHORIZE THE FAMILY COURT TO ISSUE A RULE TO SHOW CAUSE UPON THE FILING OF AN AFFIDAVIT THAT A PARENT HAS FAILED TO PAY COURT-ORDERED SUPPORT, OTHER THAN PERIODIC PAYMENT OF FUNDS FOR THE SUPPORT OF THE CHILD, TO PROVIDE FOR SERVICE BY REGULAR MAIL, TO PROVIDE THAT THE AFFIDAVIT AND CERTAIN OTHER DOCUMENTATION IS PRIMA FACIE EVIDENCE OF NONPAYMENT, SHIFTING THE BURDEN OF PROOF, AND TO PROVIDE A DEFENSE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Subarticle 3, Article 9, Chapter 7, Title 20 of the 1976 Code is amended by adding:
"Section 20-7-865. (A)(1) Notwithstanding any other provision of law, if a court order requires a parent to provide monetary support for a child, including, but not limited to payment of health, medical, or educational expenses, but excluding periodic payment of funds for the support of the child, and the parent fails to do so, the other parent may file with the court an affidavit attesting to the failure of the parent to pay the required support. The affiant must attach to the affidavit a certified copy of the outstanding bill, which must be dated within ten days of filing the affidavit, setting forth the failure of the parent to pay the required support.
(2) Upon receipt of the affidavit the court shall issue a rule to show cause to the parent for nonpayment of the required support. The parent must be served by regular mail addressed to the parent's last known address. Upon mailing the notice, the clerk of court shall file a certificate of mailing stating the name and address to which the notice was mailed and the date on which it was mailed. If service cannot be effected as set forth in this subsection, the parent may be served as prescribed for service in civil actions. The court also shall provide notice of the hearing to the affiant in the same manner as provided for in this subsection.
(B)(1) At the hearing on the rule to show cause, the order requiring the monetary support, the affidavit, and the verified copy of the outstanding bill, which must be dated within ten days of the hearing, constitute prima facie evidence, without further proof or foundation, that the parent is in violation of the court order requiring the support.
(2) Once a prima facie case is established, the only ground that may be raised to contest nonpayment of the required support is the existence or amount of the nonpayment. The burden is on the parent asserting this defense to establish the defense."
SECTION 2. This act takes effect upon approval by the Governor.
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