Question on interest calculations/procedures for arrearages

[Darryl]

Hello Soc,

  Hope I can be brief, here is the Missouri Statute. In particular para. 3,4, and 5.



Delinquent child support and maintenance, interest on, rate, how computed--execution for interest, when, procedure.
454.520.

1. All delinquent child support and maintenance payments which have accrued based upon judgments or orders of courts of this state entered prior to September 29, 1979, shall draw interest at the rate of six percent per annum through September 28, 1979; at the rate of nine percent per annum from September 29, 1979, through August 31, 1982; and thereafter at the rate of one percent per month.

2. All delinquent child support and maintenance payments which have accrued based upon judgments or orders of courts of this state entered after September 28, 1979, but prior to September 1, 1982, shall draw interest at the rate of nine percent per annum through August 31, 1982, and thereafter at the rate of one percent per month.

3. All delinquent child support and maintenance payments which accrue based upon judgments of courts of this state entered on or after September 1, 1982, shall draw interest at the rate of one percent per month.

4. The interest imposed pursuant to subsections 1 to 3 of this section shall be simple interest. Interest shall accrue at the close of the business day on the last day of each month and shall be calculated by multiplying the total arrearage existing at the end of the day, less the amount of that month's installments, by the applicable rate of interest. The total amount of interest collectible is the sum of the interest which has accrued on the last day of each month following the first delinquent payment. This interest computation method shall apply to all support and maintenance orders, regardless of the frequency of the installments required by the court. If the order does not specify the date on which support or maintenance payments are to begin, it shall be assumed that the first installment was due on the date the order was entered, and subsequent installments fall due on the same day of the week, or date of the month, as is appropriate. Payments which were to begin on the twenty-ninth, thirtieth or thirty-first of any month shall be deemed due on the last day of any month not containing such date. The interest imposed pursuant to this section shall automatically accrue and attach to the underlying support or maintenance judgment or order, and may be collected together with the arrearage, except that no payment or collection shall be construed to be interest until the entire support arrearage has been satisfied. Such interest shall be considered support or maintenance for the purposes of exemptions, restrictions on amounts which may be recovered by garnishment, and nondischargeability in bankruptcy.

5. As a condition precedent to execution for interest on delinquent child support or maintenance payments, the obligee shall present to the circuit clerk a sworn affidavit setting forth the payment history of the obligor under the judgment or order, together with a statement which details the computation of the interest claimed to be due and owing; except, that the payment history affidavit shall not be required for periods during which the clerk is acting as trustee pursuant to section 452.345, RSMo, or the division is acting as trustee pursuant to this chapter or any other provision of the laws of this state. It shall not be the responsibility of the circuit clerk to compute the interest due and owing. The payment history affidavit and statement of interest shall be entered in the case record by the circuit clerk. If the obligor disputes the payment history as sworn to by the obligee, or the interest claimed, the obligor may petition the court for a determination. The court shall hold a hearing and shall make such a determination prior to the return date of the execution, or if this is not possible, the court shall direct the sheriff to pay the proceeds of the execution into the court pending such determination. If the determination as made by the court is inconsistent with the payment history affidavit of the obligee, or the interest claimed, the amount of the execution shall be so amended.



  I was under the assumption that interest would actively accrue on any unpaid arrearage at the end of each month automatically by DCSE or whoever. Now I seem to think differently.


    1.  Does this language mean that an obligee would keep track of the arrearages, and after say a year or two, file a motion requesting a summary judgement of interest due and owing?


    2. Assuming above understanding is correct, would you then have to repeat process every so often to get new interest amounts added/ordered and reduced to summary judgement?

    3. Or........ do you only do this the first time then DCSE handles an ongoing interest calculation at the end of each month until arrearage is satisfied?



   Current arrearages of approximately $20,000.00 exist so the amounts could be substantial or at least provide some incentive to get caught up.




Thanks again Soc.

[socrateaser]

>    1.  Does this language mean that an obligee would keep
>track of the arrearages, and after say a year or two, file a
>motion requesting a summary judgement of interest due and
>owing?

No. The interest on the judgment of arrears accrues and can be tacked on and executed against in addition to the face amount of the judgment without a second filing, as long as you provide an accounting to the court clerk, unless it's the clerk's obligation to make the calculation, as defined in the statute you posted.

>    2. Assuming above understanding is correct, would you then
>have to repeat process every so often to get new interest
>amounts added/ordered and reduced to summary judgement?

Irrelevant.

>
>    3. Or........ do you only do this the first time then DCSE
>handles an ongoing interest calculation at the end of each
>month until arrearage is satisfied?

If DCSE is handling the case, then you don't do anything except call the agency and ask where your money is.

[Darryl]

>If DCSE is handling the case, then you don't do anything
>except call the agency and ask where your money is.



  DCSE says they do not do the interest thing. "You must file a motion with the court and get it reduced to a summary judgement."


  That would mean you would only be entitled to the interest accrued up to that point. Then have to repeat the process all over again.


  I didn't agree with their interpretation other than the fact of having to initiate the motion to begin with.

 

   1. Can you suggest what the motion should state, in brief, to enforce the statute as opposed to asking for summary judgement?


Thanks again Soc!!!!!!

[socrateaser]

>  DCSE says they do not do the interest thing. "You must file
>a motion with the court and get it reduced to a summary
>judgement."

That is nuts. The statute states: "The interest imposed pursuant to this section shall automatically accrue and attach to the underlying support or maintenance judgment or order, and may be collected together with the arrearage..."

Couldn't be any clearer that you don't need to reduce the interest to a separate judgment.


>  That would mean you would only be entitled to the interest
>accrued up to that point. Then have to repeat the process all
>over again.

Well, it means that you can't collect the extra interest without repeating the process, but you're still entitled to it. But, I understand your point that it means the same thing, practically.

>   1. Can you suggest what the motion should state, in brief,
>to enforce the statute as opposed to asking for summary
>judgement?

Now that gets real complicated. If DCSE is not doing its job, then the traditional response is to file a petition for a writ of mandamus and force them to act. This will be very difficult without an attorney. This is an entirely different case, not a motion, because you are not a party to DCSE's case against the obligor parent.

I'm a little confused on the facts. Do you already have a judgment of arrears for the $20K?

[Darryl]

>I'm a little confused on the facts. Do you already have a
>judgment of arrears for the $20K?




   Yes there is a judgement for the arrears. The litigation dragged on for two years before it was over, then CS was backdated to the date of service (during which time he paid zero). The problem is that the judgement was just handed down last month. Therefore not much interest to date, but if it accrued per the statute it might give the obligor a little incentive to pay up when he finds out he is swimming upstream when you consider the interest being tacked on monthly.

   Obligor is also currently on felony probation and according to statutory law now has a felony CS arrearage (over 5k), which would be in violation of probation. Thought they might advise the probation officer to put a little heat on him but their take on that is that he DOES NOT have a felony arrearage because he hasn't been convicted of it.

   Ah, the joys of DCSE!  (sigh)

[socrateaser]

>>I'm a little confused on the facts. Do you already have a
>>judgment of arrears for the $20K?
>
>>   Yes there is a judgement for the arrears. The litigation
>dragged on for two years before it was over, then CS was
>backdated to the date of service (during which time he paid
>zero). The problem is that the judgement was just handed down
>last month. Therefore not much interest to date, but if it
>accrued per the statute it might give the obligor a little
>incentive to pay up when he finds out he is swimming upstream
>when you consider the interest being tacked on monthly.
>
>   Obligor is also currently on felony probation and according
>to statutory law now has a felony CS arrearage (over 5k),
>which would be in violation of probation. Thought they might
>advise the probation officer to put a little heat on him but
>their take on that is that he DOES NOT have a felony arrearage
>because he hasn't been convicted of it.
>
>   Ah, the joys of DCSE!  (sigh)

Well, if there isn't much interest to date, then I would simply stay on DCSE to collect the $20K. I'm assuming that the current judgment lists DCSE as the party entitled to the judgment, rather than you.

If you are the party, then you could obtain a writ of execution or garnishment and start the sheriff off levying against the obligor's property and just forget about DCSE.

Even if you're not the party, if you want to go this route, you could file a motion to intervene as plaintiff, on grounds that you are the actual party in interest, and ask that the judge to amend the judgment to add you as judgment creditor. Then you could go after the money yourself, or retain an attorney to do it on a contingency (for a piece of the action).

[Darryl]

DCSE is only acting on our behalf to enforce.


  We knew the frustrations that would ensue with this route. But the obligor is very likely to continue job-hopping etc. to keep from paying and they have more tools at their disposal.

  If they would use them that is.


  Thanks for your help as always. I agree with your interpretation that the interest should accrue automatically after set in motion.

  We'll investigate a bit further with the state offices.


Thank you!