Session of 1997
HOUSE BILL No. 2473
By Representatives Flora, Bradley, Cox, Hutchins,
Kuether, Mays, Packer, Phelps and Toelkes
9 AN ACT concerning court trustees; relating to collections; amending
10 K.S.A. 23-492, 23-493, 23-495, 23-496, 23-497, 23-498 and 23-4,100
11 and K.S.A. 1996 Supp. 60-2310 and 75-6202 and repealing the existing
12 sections; also repealing K.S.A. 1996 Supp. 75-6202a.
14 Be it enacted by the Legislature of the State of Kansas:
15 Section 1. K.S.A. 23-492 is hereby amended to read as follows: 23-
16 492. The purpose of this act is to improve the enforcement of duties of
17 support and restitution.
18 Sec. 2. K.S.A. 23-493 is hereby amended to read as follows: 23-493.
19 (1) ``Court'' means the district court of this state.
20 (2) ``Duty of support'' includes any duty of support imposed by any
21 court order, decree or judgment, whether interlocutory or final, whether
22 incidental to a proceeding for divorce, separate maintenance or otherwise.
23 (3) ``Support
,'' as used in this section and K.S.A. 23-495 and 23-496,
24 and amendments thereto, means child support, whether interlocutory or
25 final, and maintenance.
26 (4) ``Obligor'' means any person owing a duty of support or restitu-
28 (5) ``Obligee'' means any person or entity to whom a duty of support
29 or restitution is owed.
30 (6) ``Duty of restitution'' includes any duty of restitution imposed by
31 any agreement, diversion agreement, court order, decree or judgment,
32 whether interlocutory or final, pursuant to a criminal conviction, order
33 of assignment to intensive supervised probation, order of probation or
34 condition of parole.
35 (7) ``Restitution'' as used in this section and K.S.A. 23-495 and 23-
36 496, and amendments thereto, means monetary remuneration owed by an
37 obligor to an obligee as compensation for loss incurred through criminal
38 actions of the obligor which result in loss to the obligee. For the purposes
39 of this act, restitution shall include court costs.
40 Sec. 3. K.S.A. 23-495 is hereby amended to read as follows: 23-495.
41 The court trustee shall have the responsibility for collection of support
42 or restitution from the obligor upon the written request of the obligee or
1 upon the order of the court.
2 Sec. 4. K.S.A. 23-496 is hereby amended to read as follows: 23-496.
3 (a) The court trustee shall be authorized and empowered to pursue all
4 civil remedies which would be available to the obligee or obligor in es-
5 tablishing and enforcing payment of support or restitution.
6 (b) The court trustee may also file motions for an increase or a de-
7 crease of the amount of support on behalf of any child. Any such motion
8 to modify the amount of support shall not be heard until notice has been
9 given to the obligee, the obligor and their attorneys of record, if any.
10 (c) The court trustee shall have the following additional powers and
11 duties upon approval of the administrative judge:
12 (1) To issue summonses, administrative subpoenas and subpoenas
13 duces tecum to obligors, obligees and other witnesses who possess knowl-
14 edge or books and records relating to enforcement of support or resti-
15 tution to appear in the office of the trustee or before the district court
16 for examination;
17 (2) to administer oaths and take sworn testimony on the record or by
19 (3) to appoint special process servers as required to carry out the
20 court trustee's responsibilities under this section;
21 (4) to enter into stipulations, acknowledgments, agreements and jour-
22 nal entries, subject to approval of the court; and
23 (5) to enter into contracts pursuant to K.S.A. 1996 Supp. 75-719, and
24 amendments thereto, with the attorney general for the collection of debts
25 owed to courts or restitution owed to obligees.
26 Sec. 5. K.S.A. 23-497 is hereby amended to read as follows: 23-497.
27 (a) To defray the expenses of operation of the court trustee's office, the
28 court trustee is authorized to charge an amount: (1) Whether fixed or
29 sliding scale, based upon the scope of services provided or upon economic
30 criteria, not to exceed 5% of the funds support collected from obligors
31 through such office, as determined necessary by the administrative judge
32 as provided by this section .; (2) based upon the hourly cost of office op-
33 erations for the provision of services on an hourly or per service basis,
34 with the written agreement of the obligee; or (3) from restitution collected,
35 not to exceed the fee authorized by the attorney general under any con-
36 tract entered into pursuant to K.S.A. 75-719, and amendments thereto.
37 (b) All such amounts shall be paid to the court trustee operations
38 fund of the county where collected. There shall be created a court trustee
39 operations fund in the county treasury of each county or district court of
40 each county, in each judicial district that establishes the office of court
41 trustee for the judicial district. The moneys budgeted to fund the oper-
42 ation of existing court trustee offices and to fund the start-up costs of new
43 court trustee offices established on or after January 1, 1992, whether as
1 a result of a rule adopted pursuant to K.S.A. 23-494, and amendments
2 thereto, or because this act has created a court trustee operations fund,
3 shall be transferred from the county general fund to the court trustee
4 operations fund. The county commissioners of the county or group of
5 counties, if the judicial district consists of more than one county, by a
6 majority vote, shall decide whether the county or counties will have a
7 court trustee operations fund in the county treasury or the district court
8 of each county. All expenditures from the court trustee operations fund
9 shall be made in accordance with the provisions of K.S.A. 23-492 et seq.
10 and amendments thereto to enforce duties of support. Authorized ex-
11 penditures from the court trustee operations fund may include repayment
12 of start-up costs, expansions and operations of the court trustee's office
13 to the county general fund. The court trustee shall be paid compensation
14 as determined by the administrative judge. The board of county com-
15 missioners of each county to which this act may apply shall provide suit-
16 able quarters for the office of court trustee, furnish stationery and sup-
17 plies, and such furniture and equipment as shall, in the discretion of the
18 administrative judge, be necessary for the use of the court trustee. The
19 administrative judge shall fix and determine the annual budget of the
20 office of the court trustee and shall review and determine on an annual
21 basis the amount necessary to be charged to defray the expense of start-
22 up costs, expansions and operations of the office of court trustee. All
23 payments made by the secretary of social and rehabilitation services pur-
24 suant to K.S.A. 23-4,117 and amendments thereto or any grants or other
25 monies received which are intended to further child support enforcement
26 goals or restitution goals shall be deposited in the court trustee operations
28 Sec. 6. K.S.A. 23-498 is hereby amended to read as follows: 23-498.
29 (a) All expenditures provided for in this act shall be paid as follows:
30 (1) In each judicial district consisting of a single county such expend-
31 iture shall be paid by the board of county commissioners or administrative
32 judge from the court trustees operations fund as provided in K.S.A. 23-
33 497 and amendments thereto.
34 (2) In each judicial district consisting of more than one county which
35 has a single court trustee operation serving all the counties in that district,
36 such expenditure shall be paid by the:
37 (A) Board of county commissioners of the county having the greatest
38 amount of
child support or restitution money collected by the court trus-
39 tee's office in such district from the court trustees operations fund of such
40 county, and such board of county commissioners shall send a statement
41 to the board of county commissioners of each of the other counties in
42 such district for a proportional amount of such annual expenditures with
43 such proportion to be based upon the respective amounts of child support
1 and restitution money collected by the court trustee's office of each
2 county within such judicial district. Each board of county commissioners
3 receiving a statement pursuant to this section shall make payment of the
4 same from the court trustees operations fund of the county; or
5 (B) administrative judge of such judicial district. Such judge shall pay
6 such annual expenditures from the court trustee operations fund in the
7 district court of each county based upon the respective amounts of
8 support and restitution money collected by the court trustee's office of
9 each county within such judicial district. The administrative judge shall
10 promptly reimburse the county general fund for expenditures made for
11 salary, compensation and fringe benefits made on behalf of the court
12 trustee's office pursuant to K.S.A. 20-162, 20-358 and 20-359, and amend-
13 ments thereto.
14 (3) The expenditure for a court trustee office in a multicounty district
15 which does not operate in all counties of the district shall be paid pro-
16 portionately, as in subsection (2), from the court trustee operations fund
17 of each county served by the court trustee.
18 (b) The administrative judge and the board of county commissioners
19 may agree on a reimbursement amount to the county general fund in an
20 amount less than the total expenses of the court trustee's office, but such
21 reimbursement amount shall not exceed the total expenses of the court
22 trustee's office.
23 Sec. 7. K.S.A. 23-4,100 is hereby amended to read as follows: 23-
24 4,100. (a) The district court shall provide by court rule for such other
25 matters as are necessary to carry out the purpose of this act, including,
26 but not limited to, the appointment of deputy trustees and other staff and
27 a procedure to review written requests of the obligee or obligor for ex-
28 emption from the office of court trustee's responsibility for collection of
29 support or restitution as provided in subsection (b).
30 (b) (1) In reviewing the written request for exemption provided in
31 subsection (a), the presiding judge shall make a determination on whether
32 the claimant's request is a good cause claim based on all relevant factors.
33 (2) The presiding judge's determination shall be based upon the to-
34 tality of the circumstances and no one factor shall be determinative as to
35 the outcome of the claimant's request for such good cause claim for ex-
37 Sec. 8. K.S.A. 1996 Supp. 60-2310 is hereby amended to read as
38 follows: 60-2310. (a) Definitions. As used in this act and the acts of which
39 this act is amendatory, unless the context otherwise requires, the follow-
40 ing words and phrases shall have the meanings respectively ascribed to
42 (1) ``Earnings'' means compensation paid or payable for personal
43 services, whether denominated as wages, salary, commission, bonus or
2 (2) ``disposable earnings'' means that part of the earnings of any in-
3 dividual remaining after the deduction from such earnings of any amounts
4 required by law to be withheld;
5 (3) ``wage garnishment'' means any legal or equitable procedure
6 through which the earnings of any individual are required to be withheld
7 for payment of any debt; and
8 (4) ``federal minimum hourly wage'' means that wage prescribed by
9 subsection (a)(1) of section 6 of the federal fair labor standards act of
10 1938, and any amendments thereto.
11 (b) Restriction on wage garnishment. Subject to the provisions of sub-
12 section (e), only the aggregate disposable earnings of an individual may
13 be subjected to wage garnishment. The maximum part of such earnings
14 of any wage earning individual which may be subjected to wage garnish-
15 ment for any workweek or multiple thereof may not exceed the lesser of:
16 (1) Twenty-five percent of the individual's aggregate disposable earnings
17 for that workweek or multiple thereof; (2) the amount by which the in-
18 dividual's aggregate disposable earnings for that workweek or multiple
19 thereof exceed an amount equal to 30 times the federal minimum hourly
20 wage, or equivalent multiple thereof for such longer period; or (3) the
21 amount of the plaintiff's claim as found in the order for garnishment. No
22 one creditor may issue more than one garnishment against the earnings
23 of the same judgment debtor during any one 30-day period, but the court
24 shall allow the creditor to file amendments or corrections of names or
25 addresses of any party to the order of garnishment at any time. In an-
26 swering such order the garnishee-employer shall withhold from all earn-
27 ings of the judgment-debtor for any pay period or periods ending during
28 such 30-day period an amount or amounts as are allowed and required
29 by law. Nothing in this act shall be construed as charging the plaintiff in
30 any garnishment action with the knowledge of the amount of any defen-
31 dant's earnings prior to the commencement of such garnishment action.
32 (c) Sickness preventing work. If any debtor is prevented from work-
33 ing at the debtor's regular trade, profession or calling for any period
34 greater than two weeks because of illness of the debtor or any member
35 of the family of the debtor, and this fact is shown by the affidavit of the
36 debtor, the provisions of this section shall not be invoked against any such
37 debtor until after the expiration of two months after recovery from such
39 (d) Assignment of account. If any person, firm or corporation sells or
40 assigns an account to any person or collecting agency, that person, firm
41 or corporation or their assignees shall not have or be entitled to the ben-
42 efits of wage garnishment. The provision of this subsection shall not apply
43 to the following:
1 (1) Assignments of support rights to the secretary of social and re-
2 habilitation services pursuant to K.S.A. 39-709 and 39-756, and amend-
3 ments thereto, and support enforcement actions conducted by court trus-
4 tees pursuant to K.S.A. 23-492, et seq., and amendments thereto;
5 (2) support rights which have been assigned to any other state pur-
6 suant to title IV-D of the federal social security act (42 U.S.C. (section) & 651 et
8 (3) assignments of accounts receivable or taxes receivable to the di-
9 rector of accounts and reports made under K.S.A. 75-3728b and amend-
10 ments thereto; or
11 (4) collections pursuant to contracts entered into in accordance with
12 K.S.A. 1996 Supp. 75-719 and amendments thereto involving the collec-
13 tion of restitution or debts to district courts.
14 (e) Exceptions to restrictions on wage garnishment. The restrictions
15 on the amount of disposable earnings subject to wage garnishment as
16 provided in subsection (b) shall not apply in the following instances:
17 (1) Any order of any court for the support of any person, including
18 any order for support in the form of alimony, but the foregoing shall be
19 subject to the restriction provided for in subsection (g);
20 (2) any order of any court of bankruptcy under chapter XIII of the
21 federal bankruptcy act; and
22 (3) any debt due for any state or federal tax.
23 (f) Prohibition on courts. No court of this state may make, execute
24 or enforce any order or process in violation of this section.
25 (g) The maximum part of the aggregate disposable earnings of an
26 individual for any workweek which is subject to garnishment to enforce
27 any order for the support of any person shall not exceed:
28 (1) If the individual is supporting a spouse or dependent child (other
29 than a spouse or child with respect to whose support such order is used),
30 50% of the individual's disposable earnings for that week;
31 (2) if the individual is not supporting a spouse or dependent child
32 described in clause (1), 60% of such individual's disposable earnings for
33 that week; and
34 (3) with respect to the disposable earnings of any individual for any
35 workweek, the 50% specified in clause (1) shall be 55% and the 60%
36 specified in clause (2) shall be 65%, if such earnings are subject to gar-
37 nishment to enforce a support order for a period which is prior to the
38 twelve-week period which ends with the beginning of such workweek.
39 Sec. 9. K.S.A. 1996 Supp. 75-6202 is hereby amended to read as
40 follows: 75-6202. As used in this act:
41 (a) ``Debtor'' means any person who:
42 (1) Owes a debt to the state of Kansas or any state agency or any
1 (2) owes support to an individual, or an agency of another state, who
2 is receiving assistance in collecting that support under K.S.A. 23-492, et
3 seq., or 39-756 and amendments thereto or under part D of title IV of
4 the federal social security act (42 U.S.C. (section) & 651 et seq.), as amended; or
5 (3) owes a debt to a foreign state agency.
6 (b) ``Debt'' means:
7 (1) Any liquidated sum due and owing to the state of Kansas, or any
8 state agency, municipality or foreign state agency which has accrued
9 through contract, subrogation, tort, operation of law, or any other legal
10 theory regardless of whether there is an outstanding judgment for that
11 sum. A debt shall not include: (A) Special assessments except when the
12 owner of the property assessed petitioned for the improvement and any
13 successor in interest of such owner of property; or (B) fines or penalties
14 assessed by a municipal court, except for cigarette or tobacco infractions
15 and traffic infractions and offenses; or
16 (2) any amount of support due and owing an individual, or an agency
17 of another state, who is receiving assistance in collecting that support
18 under K.S.A. 23-492, et seq., or 39-756 and amendments thereto or under
19 part D of title IV of the federal social security act (42 U.S.C. (section) & 651 et
20 seq.), as amended, which amount shall be considered a debt due and
21 owing the district court trustee department of social and rehabilitation
22 services for the purposes of this act.
23 (c) ``Refund'' means any amount of Kansas income tax refund due to
24 any person as a result of an overpayment of tax, and for this purpose, a
25 refund due to a husband and wife resulting from a joint return shall be
26 considered to be separately owned by each individual in the proportion
27 of each such spouse's contribution to income, as the term ``contribution
28 to income'' is defined by rules and regulations of the secretary of revenue.
29 (d) ``Net proceeds collected'' means gross proceeds collected through
30 final setoff against a debtor's earnings, refund or other payment due from
31 the state or any state agency minus any collection assistance fee charged
32 by the director of accounts and reports of the department of administra-
34 (e) ``State agency'' means any state office, officer, department, board,
35 commission, institution, bureau, agency or authority or any division or
36 unit thereof and any judicial district of this state or the clerk or clerks
37 thereof. ``State agency'' shall also include any district court utilizing col-
38 lection services pursuant to K.S.A. 1996 Supp. 75-719, and amendments
39 thereto, to collect debts owed to such court.
40 (f) ``Person'' means an individual, proprietorship, partnership, limited
41 partnership, association, trust, estate, business trust, corporation, other
42 entity or a governmental agency, unit or subdivision.
43 (g) ``Director'' means the director of accounts and reports of the de-
1 partment of administration.
2 (h) ``Municipality'' means any municipality as defined by K.S.A. 75-
3 1117, and amendments thereto.
4 (i) ``Payor agency'' means any state agency which holds money for, or
5 owes money to, a debtor.
6 (j) ``Foreign state or foreign state agency'' means the states of Colo-
7 rado, Missouri, Nebraska or Oklahoma or any agency of such states which
8 has entered into a reciprocal agreement pursuant to K.S.A. 1996 Supp.
9 75-6215 and amendments thereto.
10 Sec. 10. K.S.A. 23-492, 23-493, 23-495, 23-496, 23-497, 23-498 and
11 23-4,100 and K.S.A. 1996 Supp. 60-2310, 75-6202 and 75-6202a are
12 hereby repealed.
13 Sec. 11. This act shall take effect and be in force from and after its
14 publication in the statute book.