
    In re Darrel L. SAPP and Bonita S. Sapp, Debtors.
    Bankruptcy No. 87-03826-C.
    United States Bankruptcy Court, W.D. Missouri, C.D.
    Dec. 9, 1987.
    Norman W. Lampton, Columbia, Mo., for ITT.
    
      Fred Dannov, Columbia, Mo., for debtors.
   MEMORANDUM OPINION

FRANK W. KOGER, Bankruptcy Judge.

Darrel Lynn Sapp and Bonita Sue Sapp, hereinafter debtors, filed their Chapter 7 petition on September 3, 1987. On September 15, 1987, debtors filed two motions for avoidance of purported non-possessory and non-purchase money liens on their household goods under 11 U.S.C. § 522(f). The liens were held by two finance companies. Avco Financial Services of Rolla, Inc. made no answer and defaulted but ITT Financial Services, hereinafter ITT, denied the allegations of debtors’ motion and claimed that the goods were not exempt and were not household goods. At the hearing, counsel for both parties announced that an eviden-tiary hearing was not necessary and that the parties had a strictly legal question to be ruled by the Court, involving a change in the law of the State of Missouri. Counsel for ITT then introduced a duly exemplified copy of House Bill 484 as Codified in Revised Statute Supplement 1987 to now be § 513.436. The entire exemplified House Bill 484 is appended to this opinion, as a substantial portion of this opinion is intelligible only after perusal of said legislation.

The pertinent provision found on page 564, consists of one sentence and, in lines 1 through 5 following line 139 states:

“Section 1. No property upon which a debtor has voluntarily granted a lien shall, to the extent of the balance due on the debt secured thereby, be subject to the provisions of Chapter 513, R.S.Mo., or be exempt from attachment or execution”.

Afficiandos of bankruptcy history will recall that § 522 of the 1978 Code created the so called “federal exemptions” as set out in § 522(d)(l through 11) allowing the debtor to exempt, inter alia, all household goods on the basis of not more than $200.00 per item with a cap of $4,000.00, although the aforesaid total limitation was not enacted until 1984 in the so called “consumer amendments”. While creditors in states which provided less extensive exemptions than those contained in § 522(d) were extremely unhappy at this turn of events, little did they realize that a majority of bankruptcy acts prior to the 1898 Act had provided for certain federal exemptions, albeit they were generally far less generous than those provided by state law. Congress provided a “safety valve” for the states in § 522(b)(1) and through date of November 20, 1986, thirty-six of the sovereign states had elected to “opt out” of the federal exemptions as said section provided. The State of Missouri exercised said option in 1982 and § 513.427 Mo.R.S. eliminates the federal exemptions for residents of the state. At the same time the legisla-^ ture amended § 513.430 Mo.R.S. to provide the updated quality and quantum of exemptions in personal property thereafter available to residents. The pertinent portion of § 513.430 Mo.R.S. reads as follows:

“The following property shall be exempt from attachment and execution to the extent of any person’s interest therein: (1) Household furnishings, household goods, wearing apparel, appliances, books, animals, crops or musical instruments that are held primarily for personal, family or household use of such person or a dependent of such person, not to exceed one thousand dollars in value in the aggregate; ...”

Thus for five years, Missouri residents have uniformly exempted one thousand dollars of household goods and furniture. In point of practice, one wonders if future sociologists will conclude that all Missouri families possessed basically the same quantum of household necessities, since their claim for exemption was so uniform.

Just as uniformly as they claimed the household goods exemption, parties in Missouri filing for bankruptcy have availed themselves of the provisions of 11 U.S.C. § 522(f) and thus avoided all non-purchase money and non-possessory liens on the aforesaid household goods provided that the liens were created after the November, 1978, enactment date of the Bankruptcy Reform Act of 1978. United States v. Security Industrial Bank, 459 U.S. 70, 103 S.Ct. 407, 74 L.Ed.2d 235 (1982). The record of the hearings held by the Brook-ings Commission and early hearings before the House and Senate were replete with “horror stories” of finance companies forcing reaffirmations of vastly inflated debts by threats of repossession of the household goods or “sticks” of debtors who had no credit available to replace their basic living tools and who had granted liens on same previously.

Congress had passed § 522(f) as the cornerstone of its avowed intent to provide indigent debtors with a fresh start, just as Congress had spelled out in § 522(d) what it considered to be the basic mínimums necessary to supply the fresh start. Nevertheless, the § 522(b) provision allowing the individual states to set their own exemptions, also has been held to allow the states to eliminate the avoidance powers under § 522(f) if that were the will of the state lawmaking body. In re Pine, 717 F.2d 281 (CA 6, 1983).

Based on that background, the Court must construe the effect of § 513.436, Mo. R.S., effective July 15, 1987, passed by the 84th General Assembly of the State of Missouri. The Court determines that it does not change the prior status of lien avoidance.

In reaching that conclusion the Court does not seek to revisit the past battles of whether state action (opting out) can override any provision of § 522 other than subsection (d) because it seems clear that that issue has been resolved in favor of the creditors by at least two opinions by two different circuits. See In re Pine, 717 F.2d 281 (CA 6, 1983) and Matter of McManus, 681 F.2d 353 (CA 5 1982). Nor does the Court seek to trek through the swamp of whether state legislation which becomes effective on July 15,1987, has the power to change the terms of a contract entered into on January 30, 1987, the date of the ITT lien, with the attendant questions of substantive, procedural or ex post facto laws. Such an analysis is both narrow and unnecessary in regard to this legislation which is so broad and far reaching. For indeed, even if the Court should reach the conclusion that the legislation could affect only bargains struck after its passage date, this would still mean that all non-possessory and non-purchase money liens granted after July 15, 1987, would still not be avoidable under this new legislation; thereby negating the Congressional intent as expressed in § 522(f) and the avowed desire to create a “fresh start”.

Instead this Court chooses to base its negative conclusion to the issue it posed on a constitutional basis. Not on a federal constitutional basis, the Court hastens to add but instead on a state constitutional basis. This is emphasized because this Court has previously indicated its doubts as to the propriety of a Bankruptcy Court (or any Court, constituted as this one is) declaring any Congressional enactment to be unconstitutional. And while this Court has some reluctance to so brand the product of the infinite wisdom of the duly elected lawmakers of the State of Missouri, it reluctantly feels that it must do so in this particular instance because this particular piece of legislation will have extremely broad ramifications and will visit severe economic problems upon debtors without the financial ability to afford legal talent to carry the fight to the higher courts on an individual basis. More succinctly stated, if this Court is in error, ITT can well afford to prove that error but the Sapps cannot.

Philosophical observations aside, the reason § 513.436 Mo.R.S. is unconstitutional is found in Article 3, § 23 of the Constitution of 1945 of the State of Missouri. That section reads:

“Section 23. Limitation of scope of bills — contents of title — exceptions
Section 23. No bill shall contain more than one subject which shall be clearly expressed in its title, except bills enacted under the third exception in Section 37 of this article and general appropriation bills, which may embrace the various subjects and accounts for which moneys are appropriated”.

Nor was that a new section enacted originally in 1945. It follows precisely the intent of Article 4, Section 28 of the Constitution of 1875, which in turn followed Article 4, Section 32 of the Constitution of 1865. The founding fathers of this state obviously intended that each piece of legislation passed by the state’s lawmakers would be clearly labeled, clearly understood and clearly denominated as it was introduced, debated and passed. They further intended that no one would slip into otherwise innocuous legislation items that had no bearing on the general intent of the legislation and in effect were items of private legislation that might thus slip through in the confusion that sometimes attends the closing moments of our legislative sessions. Perusal of House Bill 484 shrieks out of just such a prohibited action having occurred. The title of the act is as follows:

AN ACT

“To repeal sections 452.350, 452.370, 454.500 and 454.505, R.S.Mo.1986, relating to support obligations, liens and other child services, and to enact in lieu thereof six new sections relating to the same subject, with an emergency clause”.

Nowhere in the title is Section 513.436 or even Chapter 513 mentioned. Any reasonable reader could only suppose that the Act pertained to child support. It is only in the 42 words of the one paragraph hooked onto the end of Section 454.505 that Chapter 513 R.S.Mo. is mentioned, and even there Section 1 follows paragraph 12 of Section 454.-505 without any break or identification. Informal investigation indicates that this section may have been added in Conference Committee at the eleventh hour at the behest of the lobby for the finance companies, all without the knowledge and comprehension of the legislators who thought they were passing an effective tool to enforce the obligations of defaulting parents for the support of their minor children. Likewise the word “liens” found in the title, by connotation, must be construed to apply to Section 454.505(4). One can only conjure up the late hour, the smoke filled room, and the ability of the lobbyist, that created this isolated section reposing in a child support bill, recalling perhaps the reflections of Frank Costello in George Y. Higgins’ book “A Choice of Enemies” as to how to label the labors of one who influences the legislative process so effectively.

If it be the will of the Legislature of the State of Missouri that there be no lien avoidance on household goods or furniture or appliances, the Pine and McManus cases previously cited herein clearly allow it to do so and this Court will apply that law meticulously. However, until such will is clearly expressed in an appropriate and constitutional manner this Court would feel totally remiss in following the present thrust of ITT’s argument under the present status of Missouri law. For all of the reasons stated, the Court rules, as a conclusion of law, that Section 1 on page 15 of the Conference Committee substitute For House Bill No. 484 as Codified in Revised Supplement 1987 to now be Section 513.436 to be unconstitutional and therefore not effective to deny avoidance of the non-pos-sessory and non-purchase money lien of ITT as to the household furnishings, household goods and appliances of debtors.

It is to be clearly understood that this ruling applies only to the 42 words, one sentence and one paragraph denominated Section 1 and does not apply to any other phrase, sentence, paragraph, section or portion of said legislation.

The Court notes that one item of said property (the dinette set) may well be the subject of a purchase money security interest, and that two 10 speed bicycles of debtors hardly qualify for denomination as household goods or furnishings. Should ITT desire to present evidence on said issues it will be allowed to do so. Otherwise, debtors’ Motion to Avoid Lien is GRANTED.

APPENDIX

FIRST REGULAR SESSION

[TRULY AGREED TO AND FINALLY PASSED]

CONFERENCE COMMITTEE SUBSTITUTE FOR

SENATE COMMITTEE SUBSTITUTE FOR

HOUSE BILL NO. 484

84TH GENERAL ASSEMBLY

AN ACT

To repeal sections 452.350,452.370,454.435,454.500, and 454.505, RSMo 1986, relating to support obligations, liens and other child services, and to enact in lieu thereof six new sections relating to the same subject, with an emergency clause.

Be it enacted by the General Assembly oí the State oí Missouri, as tollows:

Section A. Sections 452.350, 452.370, 454.435. 454.500, 2 and 454.505, RSMo 1986, are repealed and six new sections i 3 enacted in lieu thereof, to be known as sections 452.350, 4 452.370,454.435,454.500,454.505, and 1, to read as follows: 452.350. 1. Each order for child support or maintenance

2 entered or modified by the court under the authority of this

3 chapter, or otherwise, shall include a provision notifying

4 the person obligated to pay such support or maintenance

5 that, upon application by the obligee or the Missouri

6 division of child support enforcement of the department of

7 social services, the obligor’s wages or other income shall

8 be subject to withholding without further notice if the

9 obligor becomes delinquent in maintenance or child support

10 payments in an amount equal to one month’s total support

11 obligation. The order shall also contain provisions noti-

12 fying the obligor that:

13 (1) The withholding shall be for the current month’s

14 maintenance and support; and

CCS SCS HB 484 2

15 (2) The withholding shall include an additional amount

16 equal to fifty percent of one month’s child support and

17 maintenance to defray delinquent child support and main-

18 tenance, which additional withholding shall continue until

19 the delinquency is paid in full.

20 2. The provisions of section 432.030, RSMo, to the

21 contrary notwithstanding, the obligated party may execute

22 a voluntary income assignment at any time, which as-

23 signment shall be filed with the court and shall take effect

24 after service on the employer or other payor.

25 3. The circuit clerk, upon application of the obligee or

26 the division of child support enforcement, shall send, by

27 certified mail, return receipt requested, a written notice to

28 the employer or other payor listed on the application. The

29 notice shall direct the employer or other payor to withhold

30 each month an amount equal to one month's child support

31 and maintenance until further notice from the court, and tó

32 withhold each month an additional amount equal to fifty

33 percent of one month’s child support and maintenance until

34 the support delinquency is paid in full. The notice shall also

35 include a statement of exemptions which may apply to

36 limit the portion of the obligated party’s disposable

37 earnings which are subject to the withholding under federal

38 or state law. The circuit clerk shall send a copy of this

39 notice by regular mail to the last known address of the

40 obligated party. A notice issued under this section shall be

41 binding on the employer or other payor, and successor

42 employers and payors, two weeks after mailing, and shalv

43 continue until further order of the court. The obligated

44 party may, within that two-week period, request a hearing

45 on the issue of whether the withholding should take effect.

46 The withholding shall not be held in abeyance pending the

47 outcome of the hearing. The obligor may not obtain relief

CCS SCS HB 484 3

from the withholding by paying the overdue support. The

only basis for contesting the withholding is a mistake of

fact. For the purpose of this section, “mistake of fact” shall

mean an error in the amount of arrearages or an error as to

the identity of the obligor. The court shall hold its hearing,

enter its order disposing of all issues disputed by the

obligated party, and notify the obligated party and the

employer or other payor, within forty-five days of the date

on which the withholding notice was sent to the employer.

4. For each payment the employer may charge a fee not

to exceed three dollars, which shall be deducted from the

obligor’s moneys, income or periodic earnings, in addition

to the amount deducted to meet the support or maintenance

obligation subject to the limitations contained in the federal

Consumer Credit Protection Act (15 USC 1673).

5. Upon termination of the obligor’s employment with

an employer upon whom a withholding notice has been

served, the employer shall so notify the court in writing.

The employer shall also inform the court, in writing, as to

the last known address of the obligor and the name and

address of the obligor’s new employer, if known.

6. Amounts withheld by the employer or other payor

shall be transmitted, in accordance with the notice, within

ten days of the date that such amounts were payable to the

obligated party. If the employer or other payor is with-

holding amounts for more than one order, the employer or

other payor may combine all such withholding that are

payable to the same circuit clerk and transmit them as one

payment, together with a separate list identifying the cases

to which they apply. An employer or other payor who fails

to honor a withholding notice under this section may be

held in contempt of court and is liable to the obligee for the

amount that should have been withheld. Compliance by an

CCS SCS HB 484 4

81 employer or other payor with the withholding notice

82 operates as a discharge of liability to the obligor as to that

83 portion of his periodic earnings or other income so affected.

84 7. As used in this section, the term “employer” includes

85 the state and its political subdivisions.

86 8. An employer shall not discharge or otherwise dis-

87 cipline, or refuse to hire, an employee as a result of a

88 withholding notice issued pursuant to this section. Any

89 obligor who is aggrieved as a result of a violation of this

90 subsection may bring a civil contempt proceeding against

91 the employer by filing an appropriate motion in the cause

92 of action from which the withholding notice issued. If the

93 court finds that the employer discharged, disciplined, or

94 refused to hire the obligor as a result of the withholding

95 notice, the court may order the employer to reinstate or hire

96 the obligor, or rescind any wrongful disciplinary action. If

97 after the entry of such an order, the employer refuses

98 without good cause to comply with the court’s order, or if

99 the employer fails to comply with the withholding notice,

100 the court may, after notice to the employer and a hearing,

101 impose a fine against the employer, not to exceed five

102 hundred dollars. Proceeds of any such fine shall be dis-

103 tributed by the court to the county general revenue fund.

104 9. A withholding entered under this section may, upon

104 motion of a party and for good cause shown, be amended by

106 the court. The clerk shall notify the employer of the

107 amendment in the manner provided for in subsection 3 of

108 this section.

109 10. The court, upon the motion of obligor and for good

110 cause shown, may terminate the withholding, except that

111 the withholding shall not be terminated for the sole reason

112 that the obligor has fully paid past due child support and

113 maintenance.

CCS SCS HB 484 5

114 11. A withholding effected under this section shall

115 have priority over any other legal process under state law

116 against the same wages, except that where the other legal

117 process is an order issued pursuant to this section or

118 section 454.505, RSMo, the processes shall run con-

119 currently, up to applicable wage withholding limitations.

120 If concurrently running wage withholding processes for

121 the collection of support obligations would cause the

122 amounts withheld from the wages of the obligor to exceed

123 applicable wage withholding limitations, the current child

124 support obligation of the first served process shall be

125 satisfied first, and then current child support obligations of

126 subsequently served processes shall be satisfied in the

127 order of service. Thereafter, delinquencies sháll be satisfied

128 in the order of service of the processes, up to the applicable

129 limitation.

130 12. The remedy provided herein applies to child support

131 and maintenance orders entered prior to August 13,1986,

132 notwithstanding the absence of the notice to the obligor

133 provided for in subsection 1 of this section, provided that

134 prior notice from the circuit clerk to the obligor in the

135 manner prescribed in subsection 5 of section 452.345 is

136 given.

452.370. 1. Except as otherwise provided in subsection

2 6 of section 452.325, the provisions of any decree respecting

3 maintenance or support may be modified only upon a

4 showing of changed circumstances so substantial and

5 continuing as to make the terms unreasonable. In a

6 proceeding for modification of any child support award, the

7 court, in determining whether or not a substantial change

8 in circumstances has occurred, shall consider all financial

9 resources of both parties, including the extent to which the

10 reasonable expenses of either party are, or should be,

CCS SCS HB 484 6

11 shared by a spouse or other person with whom he or she

12 cohabits, and the earning capacity of a party who is not

13 employed.

14 2. Unless otherwise agreed in writing or expressly

15 provided in the decree, the obligation to pay future statutory

16 maintenance is terminated upon the death of either party or

17 the remarriage of the party receiving maintenance.

18 3. Unless otherwise agreed in writing or expressly

19 provided in the decree, provisions for the support of a child

20 are terminated by emancipation of the child. The custodial

21 parent shall have the duty to notify the noncustodial parent

22 of the child’s emancipation and failing to do so the custodial

23 parent shall be liable to the noncustodial parent for child

24 support paid to the custodial parent following emancipation

25 of a minor child.

26 4. In any case wherein a parent has made an assignment

27 of support rights to the division of family services on behalf

28 of the state as a condition of eligibility for benefits under

29 the aid to families with dependent children program and

30 either party initiates a motion to modify the support

31 obligation by reducing it, the state of Missouri shall be

32 named as a party to the motion. The state shall be served

33 with a copy of the motion by sending it by certified mail to

34 the director of the division of child support enforcement.

35 5. The circuit court shall have continuing personal

36 jurisdiction over both the obligee and the obligor of a court

37 order for child support or maintenance for the purpose of

38 modifying such order. Both obligee and obligor shall

39 notify, in writing, the circuit clerk of the court in which the

40 support or maintenance order was entered of any change of

41 mailing address. If a personal service of the motion cannot

42 be had in this state, the circuit clerk shall send a copy of the

43 motion by certified mail, restricted delivery, to the last

CCS SCS HB 484 7

address shown for that party in the circuit clerk’s record, rr T}<

and service shall be considered complete upon mailing. ID TJ<

The order may be modified* only as to support or CD TP

maintenance installments which accrued subsequent to the r-Tj<

date of personal service, or in the case of service by mail, 00

from the date the circuit clerk sent a copy of the motion, by 03 t

certified mail, to the party to be served. For the purpose of O IO

42 USC 666(a)(9)(C), the circuit clerk shall be considered the lO

“appropriate agent” to receive notice of the motion to N in

modify for the obligee or the obligor, but only in those to in

instances in which personal service could not be had in this t m

state. in io

454.435. 1. Each prosecuting attorney may enter into a

2 cooperative agreement or may enter into a multiple county

3 agreement to litigate or prosecute any action necessary to

4 secure support for any person referred to such office by the

5 division of child support enforcement including, but not

6 limited to, reciprocal actions under this chapter, actions to

7 establish and enforce obligations owed to the state under an

8 assignment of support rights, actions to enforce medical

9 support obligations ordered in conjunction with a child

10 support obligation, actions to obtain reimbursement for the

11 cost of medical care provided by the state for which an

12 obligor is liable under subsection 9 of section 208.215,

13 RSMo, and actions to establish the paternity of a child for

14 whom support is sought. In all cases where a prosecuting

15 attorney has entered into a cooperative agreement to seek

16 the establishment of a support obligation, the prosecuting

17 attorney shall, in addition to periodic monetary support,

seek an order from the court directing the obligated parent 00

to maintain medical insurance on behalf of the child for i-* CD

whom support is sought, which insurance shall, in the M O

opinion of the court, be sufficient to provide adequate M i—

CCS SCS HB 484 8

22 medical coverage; or to otherwise provide for such child’s

23 necessary medical expenses.

24 2. In all cases where a prosecuting attorney has entered

25 into a cooperative agreement to litigate or prosecute an

26 action necessary to secure child support, and an informa-

27 tion is not filed or civil action commenced within sixty days

28 of the receipt of the referral from the division, the division

29 may demand return of the referral and the case file and the

30 prosecuting attorney shallTeturn the referral and the case

31 file. The division may then use any other attorney which it

32 employs or with whom it has a cooperative agreement to

33 establish or enforce the support obligation.

34 3. For the performance of the additional duties imposed

35 by this section, each prosecuting attorney in counties of the

36 third and fourth class shall receive additional annual

37 compensation of four thousand five hundred dollars; each

38 prosecuting attorney in counties of the second class shall

39 receive additional annual compensation of two thousand

40 dollars; each prosecuting attorney in counties of the first

41 class shall receive additional annual compensation of one

42 thousand dollars; each circuit attorney in cities not con-

43 tained within a county shall receive additional annual

44 compensation of seven thousand five hundred dollars. The

45 additional annual compensation for prosecuting attorneys

46 and circuit attorneys provided for in this subsection shall

47 be paid with county or city funds; provided, however, that

48 the state shall reimburse the counties or cities for funds

49 expended for the additional annual compensation to the

50 extent that incentive payments made to a county or city by

51 the department of social services pursuant to the terms of

52 cooperative agreements are insufficient to pay for the

53 additional annual compensation. On or before January

54 fifteenth of each year, the department shall calculate the

CCS SCS HB 484 9

amount to each as incentive for the in

preceding year. The department shall determine the m

additional amount due, if any, to each county and shall pay m

such additional amount from appropriations made for that m

purpose. In the absence of a cooperative agreement between

the prosecuting attorney and the division of child support

enforcement, the additional annual compensation provided

for in this section shall be paid with county or city funds

entirely and not with state funds.

4. As used in this section, the term “prosecuting

attorney” means, with reference to any city not within a

county, the circuit attorney.

454.500. 1. At any time after the entry of an order under

2 sections 454.470 and 454.475, the obligated parent, the

3 division, or the person or agency having custody of the

4 dependent child may file a motion for modification with the

5 director. Such motion shall be in writing, shall set forth the

reasons for modification, and shall state the address of the

moving party. The motion shall be served by the moving

party in the manner provided for in subsection 5 of section

454.465 upon the obligated parent or the party holding the

support rights, as appropriate. In addition, if the support ▼4

rights are held by the division of family services on behalf H

of the state, a true copy of the motion shall be mailed by the r4

moving party by certified mail to the person having custody

of the dependent child at the last known address of that ¶-t

person. A hearing on the motion shall then be provided in H

the same manner, and determinations shall be based on

considerations set out in section 454.475. If the child for H

whom the order applies is no longer in the custody of a H

person receiving public assistance or receiving support H

enforcement services from the department, or a division CM

thereof, under section 454.425, the director may certify the W

CCS SCS HB 484 10

22 matter for hearing to the circuit court in which the order

23 was filed pursuant to section 454.490 in lieu of holding a

24 hearing under section 454.475. If the director certifies the

25 matter for hearing to the circuit court, service of the motion

26 to modify shall be had in accordance with the provisions o*

27 subsection 5 of section 452.370, RSMo. If the director does

28 not certify the matter for hearing to the circuit court,

29 service of the motion to modify shall be considered complete

30 upon personal service, or on the date of mailing, if sent by

31 certified mail. For the purpose of 42 USC 666(a)(9)(C), the

32 director shall be considered the “appropriate agent” to

33 receive the notice of the motion to modify for the obligee or

34 the obligor, but only in those instances in which the matter

35 is not certified to circuit court for hearing, and only when

36 service of the motion is attempted on the obligee or obligor

37 by certified mail.

38 2. A motion for modification made pursuant to this

39 section shall not stay the director from enforcing and

40 collecting upon the existing order pending the modification

41 proceeding unless so ordered by the court.

42 3. Only payments accruing subsequent to the service

43 of the motion for modification upon all named parties to the

44 motion may be modified. When the obligated parent or the

45 division is the moving party, modification may be granted

46 only upon a showing of a change of circumstances so

47 substantial and continuing as to make the terms unrea-

48 sonable. When the person or agency having custody of the

49 dependent child is the moving party, no showing of such

50 changed circumstances shall be required.

51 4. The circuit court may, upon such terms as may be

52 just, relieve a parent from an administrative order entered

53 against that parent because of mistake, inadvertence, sur-

54 prise, or excusable neglect.

CCS SCS HB 484 11

5. No order entered pursuant to section 454.476 shall be in in

modifiable under this section except that, an order entered co in

under section 454.476 shall be amended by the director to t-m

conform with any modification made by the court that oo m

entered the court order upon which the director based his 05 'á

order. o co

454.505. 1. In addition to any other remedy provided by

law for the enforcement of support, if an order has been

entered by the -director pursuant to sections 454.460 to

454.505 and an arrearage exists on the payments required,

the director shall issue an order directing any employer or

other payor of the parent to withhold and pay over to the

department or the clerk of the circuit court in the county in

which the order of the director was docketed pursuant to

section 454.490, money due or to become due the obligated

parent in an amount not to exceed federal wage garnishment

limitations, until all arrearages under such administrative H* H*

order are paid in full. Thereafter, the amount ordered to be tO

paid for support shall be withheld from amounts due or H» CO

becoming due the parent at each pay period. If the parent H* 4^

voluntarily requests that money due or to become due him Ol

be withheld and applied to the support obligation, the 05

employer or other shall comply with that as

if so ordered by the director. 00

2. An order entered pursuant to this section shall recite CO

the amount of all arrearages due and the amount required to

be paid as continuing support. A copy of sections 454.460

and 454.505 shall be appended to the order. A copy of such

order shall be filed with the circuit court in the county in

which the administrative support order was filed pursuant

to section 454.490.

3. An order entered pursuant to this section shall be

served on the employer or other payor by certified mail,

CCS SCS HB 484 12

28 return receipt requested, and shall be binding on the

29 employer or other payor two weeks after mailing of such

30 service. A copy of the order and a notice of property exempt

31 from withholding shall be mailed to the obligor at his last

32 known address. The employer or other payor shall withholds

33 from the earnings or other income the amount specified in

34 the order, and may deduct an additional sum not to exceed

35 three dollars as reimbursement for costs, except that the

36 total amount withheld shall not exceed the limitations

37 contained in the federal Consumer Credit Protection Act, 15

38 USC 1673(b). The employer or other payor shall transmit

39 the payments as directed in the order within ten days of the

40 date the earnings or other income were payable to the

41 obligor.

42 4. If the order is served on a payor other than an

43 employer, it shall be a lien against any money due or to

44 become due the obligated parent which is in the possession'

45 of the payor on the date of service or which may come into

46 the possession of the payor after service until further order

47 of the director, except for any deposits held in two or more

48 names in a financial institution.

49 5. The department shall notify an employer or other

50 payor upon whom such an order has been directed whenever

51 all arrearages have been paid in full, and whenever, for any

52 other reason, the amount required to be withheld and paid

53 over to the department under the order as to future pay

54 periods is to be reduced or redirected. If the parent’s support

55 obligation is required to be paid monthly and the parent’s^

56 pay periods are at more frequent intervals, the employer or

57 other payor may, at the request of the parent and with the

58 consent of the director, withhold and pay over to the

59 department, an equal amount at each pay period cumu-

60 latively sufficient to comply with the withholding order.

CCS SCS HB 484 13

6. An order issued under subsection 1 of this section

shall be a continuing order and shall remain in effect and be

binding upon any employer or other payor upon whom it is

directed until a further order of the director. Such orders

shall terminate when all children for whom the support

order applies are emancipated or deceased, or the support

67 obligation otherwise ends, and all arrearages are paid. No

68 order to withhold shall be terminated solely because the

obligor has fully paid arrearages.

7. An order issued under subsection 1 of this section

shall have priority over any other legal process under state

law against the same wages, except that where the other

legal process is an order issued pursuant to this section or

section452.350, RSMo, the processes shall run concurrently,

75 up to applicable wage withholding limitations. If con-

76 currently running wage withholding processes for the

77 collection of support obligations would cause the amounts

78 withheld from the wages of the obligor to exceed applicable

79 wage withholding limitations, the current support obli-

80 gation of the first served process shall be satisfied first, and

81 then current support obligations of subsequently served

82 process or processes shall be satisfied in the order of

83 service. Thereafter, arrearages shall be satisfied in the

84 order of service of the processes, up to the applicable

85 limitation.

86 8. No employer or other payor who complies with an

87 order entered pursuant to this section shall be liable to the

88 parent, or to any other person claiming rights derived from

89 the parent, for wrongful withholding. An employer or other

90 payor who fails or refuses to withhold or pay the amounts

91 as ordered under this section shall be liable to the party

92 holding the support rights in an amount equal to the

93 amount which became due the parent during the relevant

94 period and which, under the order, should have been

CCS SCS HB 484 14

95 withheld and paid over.

96 9. The remedy provided by this section shall be avail-

97 able where the state or any of its political subdivisions is

98 the employer or other payor of the obligated parent in the

99 same manner and to the same extent as where the employe!.

100 or other payor is a private party.

101 10. An employer shall not discharge, or refuse to hire

102 or otherwise discipline an employee as a result of an order

103 to withhold and pay over certain money authorized by this

104 section. If any such employee is discharged within thirty

105 days of the date upon which an order to withhold and pay

106 over certain money is to take effect, there shall arise a

107 rebuttable presumption that such discharge was a result of

108 such order. This presumption shall be overcome only by

109 clear, cogent and convincing evidence produced by the

110 employer that the employee was not terminated because of

111 the order to withhold and pay over certain money. Thé

112 director is hereby authorized to bring an action in circuit

113 court to determine whether the discharge constitutes a

114 violation of this subsection. If the court finds that a violation

115 has occurred, the court may enter an order against the

116 employer requiring reinstatement of the employee. Further,

117 the court may enter judgment against the employer for the

118 back wages, costs, attorney’s fees, and for the amount of

119 child support which should have been withheld and paid

120 over during the period of time the employee was wrongfully

121 discharged.

122 11. If an obligor for whom an order to withhold has beeh

123 issued under subsection 1 of this section terminates his

124 employment, the employer shall, within ten days of the

125 termination, notify the division of the termination, shall

126 provide to the division the last known address of the

127 obligor, if known to the employer, and shall provide to the

128 department the name and address of the obligor’s new

CCS SCS HB 484 15

129 employer, if known. When the department determines the

130 identity of the obligor’s new employer, the director shall

131 issue an order to the new employer as provided in sub-

132 section 1 of this section.

133 12. If an employer or other payor is withholding

134 amounts for more than one order issued under subsection 1

135 of this section, the employer or other payor may transmit

136 all such withholdings which are to be remitted to the same

137 circuit clerk as one payment together with a separate list

138 identifying obligors for whom a withholding has been made

139 and the amount withheld from each obligor so listed.

Section 1. No property upon which a debtor has

2 voluntarily granted a lien shall, to the extent of the balance

3 due on the debt secured thereby, be subject to the provisions

4 of chapter 513, RSMo, or be exempt from attachment or

5 execution.

Section B. Because immediate action is necessary to

2 ensure the continuing enforcement of court-ordered en-

3 forcement obligations, this act is deemed necessary for the

4 immediate preservation of the public health, welfare, peace

5 and safety, and is hereby declared to be an emergency act

6 within the meaning of the constitution, and this act shall be

7 in full force and effect upon its passage and approval.  