North Carolina General Statutes 110-136.4. Implementation of withholding in IV-D cases
(a) Withholding based on arrearages or obligor‘s request.
(1) Advance notice of withholding. When an obligor in a IV-D case becomes subject to income withholding, the obligee shall, after verifying the obligor’s current employer or other payor, wages or other disposable income, and mailing address, serve the obligor with advance notice of withholding in accordance with N.C. Gen. Stat. § 1A-1, Rule 4, Rules of Civil Procedure.
(2) Contents of advance notice. The advance notice to the obligor shall contain, at a minimum, the following information:
a. Whether the proposed withholding is based on the obligor’s failure to make legally obligated child support, alimony or postseparation support payments on the obligor’s request for withholding, on the obligee’s request for withholding, or on the obligor’s eligibility for withholding under N.C. Gen. Stat. § 110-136.3(b)(3);
b. The amount of overdue child support, overdue alimony or postseparation support payments, the total amount to be withheld, and when the withholding will occur;
c. The name of each child or person for whose benefit the child support, alimony or postseparation support payments are due and information sufficient to identify the court order under which the obligor has a duty to support the child, spouse, or former spouse;
d. The amount and sources of disposable income;
e. That the withholding will apply to the obligor’s wages or other sources of disposable income from current payors and all subsequent payors once the procedures under this section are invoked;
f. An explanation of the obligor’s rights and responsibilities pursuant to this section;
g. That withholding will be continued until terminated pursuant to N.C. Gen. Stat. § 110-136.10
(3) Contested withholding. The obligor may contest the withholding only on the basis of a mistake of fact, except that N.C. Gen. Stat. § 110-129(10)(a) is not applicable if withholding is based on the obligor’s or obligee’s request for withholding. To contest the withholding, the obligor must, within 10 days of receipt of the advance notice of withholding, request a hearing in the county where the support order was entered before the district court and give notice to the obligee specifying the mistake of fact upon which the hearing request is based. If the asserted mistake of fact can be resolved by agreement between the obligee and the obligor, no hearing shall occur. Otherwise, a hearing shall be held and a determination made, within 30 days of the obligor’s receipt of the advance notice of withholding, as to whether the asserted mistake of fact is valid. No withholding shall occur pending the hearing decision. The failure to hold a hearing within 30 days shall not invalidate an otherwise properly entered order. If it is determined that a mistake of fact exists, no withholding shall occur. Otherwise, within 45 days of the obligor’s receipt of the advance notice of withholding, the obligee shall serve the payor, pursuant to N.C. Gen. Stat. § 1A-1, Rule 5, Rules of Civil Procedure, or by electronic transmission in compliance with the federal Office of Child Support Enforcement (OCSE) electronic income withholding (e-IWO) procedures, with notice of his obligation to withhold, and shall mail a copy of such notice to the obligor and file a copy with the clerk. In the event of appeal, withholding shall not be stayed. If the appeal is concluded in favor of the obligor, the obligee shall promptly repay sums wrongfully withheld and notify the payor to cease withholding.
(4) Uncontested withholding. If the obligor does not contest the withholding within the 10-day response period, the obligee shall serve the payor, pursuant to N.C. Gen. Stat. § 1A-1, Rule 5, Rules of Civil Procedure, or by electronic transmission in compliance with the federal Office of Child Support Enforcement (OCSE) electronic income withholding (e-IWO) procedures, with notice of his obligation to withhold, and shall mail a copy of such notice to the obligor and file a copy with the clerk.
(5) Payment not a defense to withholding. The payment of overdue support shall not be a basis for terminating or not implementing withholding.
(6) Inability to implement withholding. When an obligor is subject to withholding, but withholding under this section cannot be implemented because the obligor’s location is unknown, because the extent and source of his disposable income cannot be determined, or for any other reason, the obligee shall either request the clerk of superior court to initiate enforcement proceedings under N.C. Gen. Stat. § 15A-1344.1(d) or N.C. Gen. Stat. § 50-13.9(d) or take other appropriate available measures to enforce the support obligation.
(b) Immediate income withholding. When a new or modified child support order is entered, the district court judge shall, after hearing evidence regarding the obligor’s disposable income, place the obligor under an order for immediate income withholding. The IV-D agency shall serve the payor pursuant to N.C. Gen. Stat. § 1A-1, Rule 5, Rules of Civil Procedure, or by electronic transmission in compliance with the federal Office of Child Support Enforcement (OCSE) electronic income withholding (e-IWO) procedures, with a notice of his obligation to withhold, and shall mail a copy of such notice to the obligor and file a copy with the clerk. If information is unavailable regarding an obligor’s disposable income, or the obligor is unemployed, or an agreement is reached between both parties which provides for an alternative arrangement, immediate income withholding shall not apply. The obligor, however, is subject to income withholding pursuant to N.C. Gen. Stat. § 110-136.4(a).
(c) Subsequent payors. If the obligor changes employment or source of disposable income, notice to subsequent payors of their obligation to withhold shall be served as required by N.C. Gen. Stat. § 1A-1, Rule 5, Rules of Civil Procedure or by electronic transmission in compliance with the federal Office of Child Support Enforcement (OCSE) electronic income withholding (e-IWO) procedures. Copies of such notice shall be filed with the clerk of court and served upon the obligor by first class mail.
(d) Multiple withholdings. The obligor must notify the obligee if the obligor is currently subject to another withholding for child support. In the case of two or more withholdings against one obligor, the obligee or obligees shall attempt to resolve any conflict between the orders in a manner that is fair and equitable to all parties and within the limits specified by N.C. Gen. Stat. § 110-136.6 If the conflict cannot be so resolved, an injured party, upon request, shall be granted a hearing in accordance with the procedure specified in N.C. Gen. Stat. § 110-136.4(c). The conflict between the withholding orders shall be resolved in accordance with N.C. Gen. Stat. § 110-136.7
(e) Modification of withholding. When an order for withholding has been entered under this section, the obligee may modify the withholding based on changed circumstances. The obligee shall proceed as is provided in this section.
(f) Applicability of section. The provisions of this section apply to IV-D cases only. ?(1985 (Reg. Sess., 1986), c. 949, s. 2; 1989, c. 601, s. 3; 1997-433, s. 6.2; 1998-17, s. 1; 1998-176, s. 5; 2001-237, s. 4; 2015-62, s. 2(b); 2015-117, s. 4.)
Terms Used In North Carolina General Statutes 110-136.4
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Clerk of court: An officer appointed by the court to work with the chief judge in overseeing the court's administration, especially to assist in managing the flow of cases through the court and to maintain court records.
- Court order: means any judgment or order of the courts of this State or of another state. See North Carolina General Statutes 110-129
- Disposable income: means any form of periodic payment to an individual, regardless of sources, including but not limited to wages, salary, commission, self-employment income, bonus pay, severance pay, sick pay, incentive pay, vacation pay, compensation as an independent contractor, worker's compensation, unemployment compensation benefits, disability, annuity, survivor's benefits, pension and retirement benefits, interest, dividends, rents, royalties, trust income and other similar payments, which remain after the deduction of amounts for federal, State, and local taxes, Social Security, and involuntary retirement contributions. See North Carolina General Statutes 110-129
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- following: when used by way of reference to any section of a statute, shall be construed to mean the section next preceding or next following that in which such reference is made; unless when some other section is expressly designated in such reference. See North Carolina General Statutes 12-3
- IV-D case: means a case in which services have been applied for or are being provided by a child support enforcement agency established pursuant to Title IV-D of the Social Security Act as amended and this Article. See North Carolina General Statutes 110-129
- Mistake of fact: means that the obligor:
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Obligor: means the individual who owes a duty to make child support payments or payments of alimony or postseparation support under a court order. See North Carolina General Statutes 110-129
- Payor: means any payor, including any federal, State, or local governmental unit, of disposable income to an obligor. See North Carolina General Statutes 110-129