HB 2473--
Session of 1997
By Representatives Flora, Bradley, Cox, Hutchins, Kirk,
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. 13 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- 27 tion. 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 HB 2473

 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
18  affidavit;
19    (3)  to appoint special process servers as required to carry out the
20  court trustee's responsibilities under this section; and
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
HB 2473

 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
27  fund.
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
HB 2473

 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 child
 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-
36  emption.
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
41  them:
42    (1)  ``Earnings'' means compensation paid or payable for personal
43  services, whether denominated as wages, salary, commission, bonus or
HB 2473

 1  otherwise;
 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
38  illness.
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:
HB 2473

 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
 7  seq.);
 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
43  municipality;
HB 2473

 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-
33  tion.
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-
HB 2473

 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.