454.505. Garnishment of wages, when, procedure, limitations--notice to employer, contents--employer, duties, liabilities--priorities--discharge of employee prohibited, when, penalties for--orders issu
Garnishment of wages, when, procedure, limitations--notice toemployer, contents--employer, duties,liabilities--priorities--discharge of employee prohibited, when,penalties for--orders issued by another state, laws to govern.
454.505. 1. In addition to any other remedy provided by law for theenforcement of support, if a support order has been entered, the directorshall issue an order directing any employer or other payor of the parent towithhold and pay over to the division, the payment center pursuant tosection 454.530 or the clerk of the circuit court in the county in which atrusteeship is or will be established, money due or to become due theobligated parent in an amount not to exceed federal wage garnishmentlimitations. For administrative child support orders issued pursuant tosections other than section 454.476, the director shall not issue an orderto withhold and pay over in any case in which:
(1) One of the parties demonstrates, and the director finds, thatthere is good cause not to require immediate income withholding. Forpurposes of this subdivision, any finding that there is good cause not torequire immediate withholding shall be based on, at least, a writtendetermination and an explanation by the director that implementingimmediate wage withholding would not be in the best interests of the childand proof of timely payments of previously ordered support in casesinvolving the modification of support orders; or
(2) A written agreement is reached between the parties that providesfor an alternative payment arrangement.
If the income of an obligor is not withheld as of the effective date of thesupport order, pursuant to subdivision (1) or (2) of this subsection, orotherwise, such obligor's income shall become subject to withholdingpursuant to this section, without further exception, on the date on whichthe obligor becomes delinquent in maintenance or child support payments inan amount equal to one month's total support obligation.
2. An order entered pursuant to this section shall recite the amountrequired to be paid as continuing support, the amount to be paid monthlyfor arrearages and the Social Security number of the obligor if available.In addition, the order shall contain a provision that the obligor shallnotify the division of child support enforcement regarding the availabilityof medical insurance coverage through an employer or a group plan, providethe name of the insurance provider when coverage is available, and informthe division of any change in access to such insurance coverage. A copy ofsection 454.460 and this section shall be appended to the order.
3. An order entered pursuant to this section shall be served on theemployer or other payor either by regular mail or by certified mail, returnreceipt requested or may be issued through electronic means, and shall bebinding on the employer or other payor two weeks after mailing orelectronic issuance of such service. A copy of the order and a notice ofproperty exempt from withholding shall be mailed to the obligor at theobligor's last known address. The notice shall advise the obligor that thewithholding has commenced and the procedures to contest such withholdingpursuant to section 454.475 on the grounds that such withholding or theamount withheld is improper due to a mistake of fact by requesting ahearing thirty days from mailing the notice. At such a hearing thecertified copy of the court order and the sworn or certified statement ofarrearages shall constitute prima facie evidence that the director's orderis valid and enforceable. If a prima facie case is established, theobligor may only assert mistake of fact as a defense. For purposes of thissection, "mistake of fact" means an error in the amount of the withholdingor an error as to the identity of the obligor. The obligor shall have theburden of proof on such issues. The obligor may not obtain relief from thewithholding by paying the overdue support. The employer or other payorshall withhold from the earnings or other income of each obligor the amountspecified in the order, and may deduct an additional sum not to exceed sixdollars per month as reimbursement for costs, except that the total amountwithheld shall not exceed the limitations contained in the federal ConsumerCredit Protection Act, 15 U.S.C. 1673(b). The employer or other payorshall transmit the payments as directed in the order within seven businessdays of the date the earnings, money due or other income was payable to theobligor. For purposes of this section, "business day" means a day thatstate offices are open for regular business. The employer or other payorshall, along with the amounts transmitted, provide the date the amount waswithheld from each obligor. If the order does not contain the SocialSecurity number of the obligor, the employer or other payor shall not beliable for withholding from the incorrect obligor.
4. If the order is served on a payor other than an employer, it shallbe a lien against any money due or to become due the obligated parent whichis in the possession of the payor on the date of service or which may comeinto the possession of the payor after service until further order of thedirector, except for any deposits held in two or more names in a financialinstitution.
5. The division shall notify an employer or other payor upon whomsuch an order has been directed whenever all arrearages have been paid infull, and whenever, for any other reason, the amount required to bewithheld and paid over to the payment center pursuant to the order as tofuture pay periods is to be reduced or redirected. If the parent's supportobligation is required to be paid monthly and the parent's pay periods areat more frequent intervals, the employer or other payor may, at the requestof the obligee or the director, withhold and pay over to the payment centeran equal amount at each pay period cumulatively sufficient to comply withthe withholding order.
6. An order issued pursuant to subsection 1 of this section shall bea continuing order and shall remain in effect and be binding upon anyemployer or other payor upon whom it is directed until a further order ofthe director. Such orders shall terminate when all children for whom thesupport order applies are emancipated or deceased, or the supportobligation otherwise ends, and all arrearages are paid. No order towithhold shall be terminated solely because the obligor has fully paidarrearages.
7. An order issued pursuant to subsection 1 of this section shallhave priority over any other legal process pursuant to state law againstthe same wages, except that where the other legal process is an orderissued pursuant to this section or section 452.350, RSMo, the processesshall run concurrently, up to applicable wage withholding limitations. Ifconcurrently running wage withholding processes for the collection ofsupport obligations would cause the amounts withheld from the wages of theobligor to exceed applicable wage withholding limitations and includes awage withholding from another state pursuant to section 454.932, theemployer shall first satisfy current support obligations by dividing theamount available to be withheld among the orders on a pro rata basis usingthe percentages derived from the relationship each current support orderamount has to the sum of all current child support obligations.Thereafter, arrearages shall be satisfied using the same pro ratadistribution procedure used for distributing current support, up to theapplicable limitation. If concurrently running wage withholding processesfor the collection of support obligations would cause the amounts withheldfrom the wages of the obligor to exceed applicable wage withholdinglimitations and does not include a wage withholding from another statepursuant to section 454.932, the employer shall withhold and pay to thepayment center an amount equal to the wage withholding limitations. Thepayment center shall first satisfy current support obligations by dividingthe amount available to be withheld among the orders on a pro rata basisusing the percentages derived from the relationship each current supportorder amount has to the sum of all current child support obligations.Thereafter, arrearages shall be satisfied using the same pro ratadistribution procedure used for distributing current support, up to theapplicable limitation.
8. No employer or other payor who complies with an order enteredpursuant to this section shall be liable to the parent, or to any otherperson claiming rights derived from the parent, for wrongful withholding.An employer or other payor who fails or refuses to withhold or pay theamounts as ordered pursuant to this section shall be liable to the partyholding the support rights in an amount equal to the amount which becamedue the parent during the relevant period and which, pursuant to the order,should have been withheld and paid over. The director is hereby authorizedto bring an action in circuit court to determine the liability of anemployer or other payor for failure to withhold or pay the amounts asordered. If a court finds that a violation has occurred, the court mayfine the employer in an amount not to exceed five hundred dollars. Thecourt may also enter a judgment against the employer for the amounts to bewithheld or paid, court costs and reasonable attorney's fees.
9. The remedy provided by this section shall be available where thestate or any of its political subdivisions is the employer or other payorof the obligated parent in the same manner and to the same extent as wherethe employer or other payor is a private party.
10. An employer shall not discharge, or refuse to hire or otherwisediscipline, an employee as a result of an order to withhold and pay overcertain money authorized by this section. If any such employee isdischarged within thirty days of the date upon which an order to withholdand pay over certain money is to take effect, there shall arise arebuttable presumption that such discharge was a result of such order.This presumption shall be overcome only by clear, cogent and convincingevidence produced by the employer that the employee was not terminatedbecause of the order to withhold and pay over certain money. The directoris hereby authorized to bring an action in circuit court to determinewhether the discharge constitutes a violation of this subsection. If thecourt finds that a violation has occurred, the court may enter an orderagainst the employer requiring reinstatement of the employee and may finethe employer in an amount not to exceed one hundred fifty dollars.Further, the court may enter judgment against the employer for the backwages, costs, attorney's fees, and for the amount of child support whichshould have been withheld and paid over during the period of time theemployee was wrongfully discharged.
11. If an obligor for whom an order to withhold has been issuedpursuant to subsection 1 of this section terminates the obligor'semployment, the employer shall, within ten days of the termination, notifythe division of the termination, shall provide to the division the lastknown address of the obligor, if known to the employer, and shall provideto the division the name and address of the obligor's new employer, ifknown. When the division determines the identity of the obligor's newemployer, the director shall issue an order to the new employer as providedin subsection 1 of this section.
12. If an employer or other payor is withholding amounts for morethan one order issued pursuant to subsection 1 of this section, theemployer or other payor may transmit all such withholdings which are to beremitted to the same circuit clerk, other collection unit or to the paymentcenter after October 1, 1999, as one payment together with a separate listidentifying obligors for whom a withholding has been made and the amountwithheld from each obligor so listed, and the withholding date or dates foreach obligor.
13. For purposes of this section, "income" means any periodic form ofpayment due to an individual, regardless of source, including wages,salaries, commissions, bonuses, workers' compensation benefits, disabilitybenefits, payments pursuant to a pension or a retirement program, andinterest.
14. The employer shall withhold funds as directed in the notice,except if an employer receives an income withholding order issued byanother state, the employer shall apply the income withholding law of thestate of the obligor's principal place of employment in determining:
(1) The employer's fee for processing an income withholding order;
(2) The maximum amount permitted to be withheld from the obligor'sincome;
(3) The time periods within which the employer shall implement theincome withholding order and forward the child support payments;
(4) The priorities for withholding and allocating income withheld formultiple child support obligees; and
(5) Any withholding terms and conditions not specified in the order.
15. If the secretary of the Department of Health and Human Servicespromulgates a final standard format for an employer income withholdingnotice, the director shall use such notice prescribed by the secretary.
(L. 1982 S.B. 468 § 22, A.L. 1984 H.B. 1275, A.L. 1986 H.B. 1479, A.L. 1987 H.B. 484, A.L. 1990 S.B. 834, A.L. 1993 S.B. 253, A.L. 1997 S.B. 361, A.L. 1998 S.B. 910, A.L. 1999 S.B. 291, A.L. 2003 H.B. 613 merged with S.B. 330 merged with S.B. 471)(1994) Where statute prohibits employers from discharging employees in response to wage-withholding order to satisfy child support obligation, legislature did not clearly indicate its intent to establish private cause of action for employees against employers. The failure to expressly create a private cause of action gives rise to the implication that the division director of child support enforcement has that exclusive right to bring suit. Johnson v. Kraft General Foods, Inc., 885 S.W.2d 334 (Mo.banc).