CS Arrearage Interest Revisited (briefly)

[Darryl]

Soc,

  Would like your opinion again. Brought this issue up recently on your forum. State is Missouri. DCSE's policy is that you must file motion with circuit clerk, obtain summary judgement etc.....

To summaraize:

Paragraph 4 mentions automatic accrual etc......

Paragraph 5 is what I believe they are interpreting to force each individual to periodically obtain judgements.


      1. Do Para. 4 and Para. 5 conflict?

      2. Also, para. 5 states no affadavit of payment history required when division acting as trustee etc...  Who then will calculate the interest when DCSE says its not their job?

       3. Illinois has a sililiar statute that seems more clearly defined and they refer to "12-109 Code of Civil Procedure", "to comply with Federal Law", Doesn't Missouri have to comply with the same law?



Next para relates to question 3:

Interest on child support. PA 94-90, effective January 1, 2006, amends all child support statutes to provide a complicated formula to calculate on a monthly basis simple interest on child support arrearages to comply with federal law.




Remainder of text relates to questions 1 and 2:

RSMo 454.520.

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.

[socrateaser]

>      1. Do Para. 4 and Para. 5 conflict?

No. P4 describes how interest is calculated on a judgment of arrears. P5 states that the obligee must provide a current statement showing the calculation of any arrears accrued since jugment, as a precondition to receiving a writ of execution.

This simply means that before the court will order the sherrif to forceably collect the money, the court wants a current statement of exactly how much money the obligee is entitled to have collected.

>      2. Also, para. 5 states no affadavit of payment history
>required when division acting as trustee etc...  Who then will
>calculate the interest when DCSE says its not their job?

The question is whether when DCSE is involved, whether the statute is intended to mean that the court clerk automatically becomes the trustee, or whether the court becoming trustee to the amounts owed is the result of some separate legal action or condition (which is possible, but I don't know MO law on the issue).

If the former, then it would be the court's responsibility to make the calculation for DCSE, but not necessarily, because the statute doesn't actually force the government to produce a statement of interest owed -- it just relieves the obligee of the duty.

If the latter, then you are responsible whether or not DCSE is involved, but only if the court is not acting as trustee.


See, this is what happens when you don't tell me the actual facts of your case. I'm speculating about possible outcomes rather than giving you a definitive interpretation (which may also have options, but fewer ones for certain).

>       3. Illinois has a sililiar statute that seems more
>clearly defined and they refer to "12-109 Code of Civil
>Procedure", "to comply with Federal Law", Doesn't Missouri
>have to comply with the same law?

Absolutely, where federal law conflicts.

[Darryl]

>
>See, this is what happens when you don't tell me the actual
>facts of your case. I'm speculating about possible outcomes
>rather than giving you a definitive interpretation (which may
>also have options, but fewer ones for certain).
>


   Sorry Soc, guess it was discussed in prior post, should've refreshed you.


    Obligee is entitled to all child support and arrearage, i.e. no state aid ever provided. Obligee turns case over to DCSE for enforcement. Arrearages over $20K.

    Obligee assumes interest will "automatically accrue" per para. 4.

    DCSE says obligee must obtain judgement for interest.

    This means obligee must file a new motion, lets says annually, with the court to get new judgement for subsequent interest accrued since last date of judgement.

     Seems to be a very cumbersome method when you consider the multitude of Obligees with arrearages due them, and a hell of a clog on the court system.



     1. That being said, then DCSE is correct in their interpretation that obligee return to the court for each new judgement of interest, and nothing will accrue "automatically" after that?

[socrateaser]

>     1. That being said, then DCSE is correct in their
>interpretation that obligee return to the court for each new
>judgement of interest, and nothing will accrue "automatically"
>after that?

That's not how I read the statute (however there may be some other statute that clarifies things). My interpretation is:

1. Obligee obtains a judgment of arrears. This judgment liquidates all amounts due up until that judgment is entered. If the obligor is no longer liable for support, then the judgment amount will never increase, because no more support arrears will acrue.

2. Obligee obtains a writ of execution/garnishment from the court clerk, based upon the judgment amount, to order the sheriff to garnish wages or attach assets. In order for the clerk to issue the writ, obligee must submit a statement of interest acrued, so that the writ will not misrepresent the amount due obligee.

3. If execution does not produce the amount due, then interest increases, and at some point, up to the discretion of the obligee, another writ can be obtained to include the newly acrued interest.

4. If the obligor is still obligated for future support, then obligee can obtain a new judgment for the additional arrears that have acrued, at which point the obligor could obtain another writ of execution per #2 above.

And so on and so forth.

As for DCSE's obligation, I can only guess that DCSE is avoiding some difficult accounting because it doesn't see sufficient extra benefit, and since the statute doesn't require it to collect the interest, it has simply chosen not to do so.