§ 15-19-2 - Order for deposit of assets to secure future support payments.
SECTION 15-19-2
§ 15-19-2 Order for deposit of assets tosecure future support payments. – (a) Subject to subsections (b) and (c) of this section, in any proceeding wherethe court has ordered either or both parents to pay any amount of the supportof a minor child, upon an order to show cause or notice of motion, application,and declaration signed under penalty of perjury by the person to whom supporthas been ordered to have been paid stating that the parent or parents soordered is in arrears in payment in a sum equal to the amount of sixty (60)days of payments, the court shall issue to the parent or parents ordered to paysupport, following notice and opportunity for a hearing, an order requiringthat the parent or parents deposit assets to secure future support paymentswith the family court clerk or any other trustee designated by the court. Uponrequest of any party the court may also issue an ex parte restraining order asspecified in subsection (d) of this section. Upon deposit of any asset which isnot readily convertible into money, the court may, not less than twenty (20)days after serving the obligor parent or parents with written notice and ahearing, order the sale of that asset or assets and the deposit of the proceedswith the person designated under this subsection. For purposes of theprovisions of title 34, the date of the issuance of the order to deposit assetsshall be construed as the date notice of levy on an interest in real propertywas served on the judgment debtor. When the asset ordered to be deposited isreal property, the order shall be certified as judgment in accordance with theprovisions of titles 8, 9, 10, and 34. A deposit of real property is madeeffective by recordation of a mortgage deed running to the family court clerkwith the city or town recorder of deeds. The deposited real property and therights, benefits, and liabilities attached to that property shall continue inthe possession of the legal owner.
(2) Upon an obligor parent's failure, within the timespecified by the court, to make reasonable efforts to cure the default in childsupport payments or to comply with a court approved payment plan, if paymentscontinue in the arrears, the family court clerk or trustee designated by thecourt shall, not less than twenty-five (25) days after providing the obligorparent or parents with a written notice served personally or with returnreceipt requested, unless a motion or order to show cause has been filed tostop the use or sale, use the money or sell or otherwise process the depositedassets for an amount sufficient to pay the arrearage and the amount ordered bythe court for the support, maintenance, and education of the minor childcurrently due.
(3) Assets which have been deposited pursuant to an orderissued in accordance with subdivision (1) of this subsection shall be construedas being assets subject to levy pursuant to the provisions of title 34. Thesale of assets shall be conducted in accordance with the provisions of title 34.
(4) The family court clerk or trustee designated by the courtmay deduct from the deposited money the sum of one dollar ($1.00) for eachpayment made pursuant to subdivision (2) of this subsection.
(5) An obligor parent alleged to be in arrears under thischapter may employ any of the following grounds as a defense to the motionfiled pursuant to subdivision (1) of this subsection, or as a basis for filinga motion to stop a sale or use of assets under subdivision (2) of thissubsection:
(i) Child support payments are not in arrears;
(ii) There has been a change in the custody of the children;
(iii) Illness or disability;
(iv) Unemployment;
(v) Serious adverse impact on the immediate family of theobligor parent residing with the obligor parent that outweighs the impact ofdenial of the motion or stopping the sale on obligee;
(vi) Serious impairment of the ability of the obligor parentto generate income; or
(vii) Other emergency conditions.
(6) An obligor parent must rebut the presumptions thatnonpayment of child support was willful, without good faith, and that theobligor had the ability to pay the support.
(7) An obligor parent may file a motion to stop the use ofthe money or the sale of the asset pursuant to subdivision (2) of thissubsection within fifteen (15) days after service of notice on him or herpursuant to subdivision (2) of this subsection. The clerk of the court shallset the motion for a hearing not less than twenty (20) days after service onthe person or county officer to whom support has been ordered to have been paid.
(b) The court shall issue an order pursuant to subdivision(1) of subsection (a) upon a determination that one or more of the followingconditions exists:
(1) The obligor parent is not receiving salary or wagessubject to an assignment pursuant to § 15-5-16.2; and there is reason tobelieve that he or she has earned income from some source of employment;
(2) An assignment of a portion of salary or wages pursuant to§ 15-5-16.2 would not be sufficient to meet the amount of the supportobligation, for reasons other than a change of circumstances which wouldqualify for a reduction in the amount of child support ordered;
(3) The job history of the obligor parent shows that anassignment of a portion of salary or wages pursuant to § 15-5-16.2 wouldbe difficult to enforce or would not be a practical means for securing thepayment of the support obligation, due to circumstances including, but notlimited to, multiple concurrent or consecutive employers.
(c) The designation of assets subject to an order pursuant tosubdivision (1) of subsection (a) shall be based upon concern for maximizingthe liquidity and ready conversion into cash of the deposited asset. In allinstances, the assets shall include a sum of money up to or equal in value toone year of support payments or six thousand dollars ($6,000), whichever isless, or any other assets, personal or real, designated by the court whichequal in value up to one year of payments for support of the minor child, orany other amount in the discretion of the family court. In lieu of depositingcash or other assets as provided above, the obligor parent may, if approved bythe court, provide a performance bond secured by any real property or otherassets of the parent and equal in value to one year of payments.
(d) During the pendency of any proceeding pursuant to thischapter, and upon the application of either party in the manner provided by theprovisions of title 34, the court may, without a hearing, issue ex parte ordersrestraining any person from transferring, encumbering, hypothecating,concealing, or in any way disposing of any property, real or personal, whethercommunity, quasi-community, or separate, except in the usual course of businessor for the necessities of life, and if the order is directed against a party,requiring him or her to notify the other party of any proposed extraordinaryexpenditures and to account to the court for all such extraordinaryexpenditures. The matter shall be made returnable not later than twenty (20)days, or if good cause appears to the court twenty-five (25) days, from thedate of the order, at which time the ex parte order shall expire. Any orderissued pursuant to this chapter shall state on its face the date of expirationof the order, which shall expire in one year or upon deposit of assets or moneypursuant to subdivision (1) of subsection (a), whichever occurs first. Thecourt, at the hearing, shall determine for which property the obligor parentshall be required to report extraordinary expenditures and shall specify whatis deemed an extraordinary expenditure for purposes of this subsection.
(e) The family court clerk or trustee designated by the courtpursuant to subsection (a) of this section, who is responsible for any money orproperty and for any disbursements under this chapter, shall not be held liablefor any action undertaken in good faith and in conformance with this chapter.
(f) The family court clerk or trustee designated by the courtshall return all assets subject to court order under subdivision (1) ofsubsection (a) to the obligor parent or parents when both of the followingoccur:
(i) One year has elapsed since the court issued the orderdescribed under subdivision (1) of subsection (a); and
(ii) The obligor parent or parents have made all supportpayments on time during that one year period.
(2) When the above criteria have been satisfied and when thedeposited asset was real property, the family court clerk or trustee designatedby the court shall prepare a release, and shall request the clerk of the courtwhere the order to deposit assets was rendered to certify the release andrecord it in the office of the recorder of deeds in the city or town where theproperty is located.
(g) The family court clerk or trustee shall, if requested bythe obligor parent, prepare a statement setting forth disbursements andreceipts made under this chapter.
(h) If the family court clerk, trustee, or person designatedunder subsection (a) of this section incurs fees or costs under this chapterwhich are not compensated by the deduction under subdivision (3) of subsection(a), including, but not limited to, fees or costs incurred in any sale ofassets pursuant to subsection (a) of this section and in the preparation of astatement pursuant to subsection (g) of this section, the court shall hear notless than twenty (20) days after service upon the obligor parent of the noticeof motion or order to show cause by the family court clerk, trustee, or persondesignated under subsection (a) of this section incurring the fees or costs,and order the obligor parent or parents to pay reasonable fees and costs. Feesand costs ordered to be paid by the court under this subsection shall be inaddition to any deposit made under subsection (a) of this section, but shallnot exceed five percent (5%) of one year's child support obligation or thetotal amount ordered deposited under subdivision (1) of subsection (a),whichever is less.
(i) The purpose of this chapter is to provide anextraordinary remedy for cases of bad faith failure to pay child supportobligations.