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Section 52-362 – Income withholding and unemployment compensation for support

May 11, 2021 | Civil Procedure, Connecticut

(a) For the purposes of this section:

(1) “Dependent” means a spouse, former spouse or child entitled to payments under a support order, provided Support Enforcement Services of the Superior Court or the state acting under an assignment of a dependent’s support rights or under an application for child support enforcement services shall, through an officer of Support Enforcement Services or the Office of Child Support Services within the Department of Social Services or an investigator of the Department of Administrative Services or the Attorney General, take any action which the dependent could take to enforce a support order;
(2) “Disposable earnings” means that part of the earnings of an individual remaining after deduction from those earnings of amounts required to be withheld for the payment of federal, state and local income taxes, employment taxes, normal retirement contributions, union dues and initiation fees, and group life and health insurance premiums;
(3) “Earnings” means any debt accruing to an obligor by reason of such obligor’s personal services, including any compensation payable by an employer to an employee for such personal services whether denominated as wages, salary, commission, bonus or otherwise, including unemployment compensation if a purchase of service agreement between the Commissioner of Social Services and the Labor Commissioner is in effect pursuant to subsection (e) of section 17b-179;
(4) “Employer” means any person, including the Labor Commissioner, who owes earnings to an obligor;
(5) “Income” means any periodic form of payment due to an individual, regardless of source, including, but not limited to, disposable earnings, workers’ compensation and disability benefits, payments pursuant to a pension or retirement program and interest;
(6) “Issue” means:

(A) Complete the withholding order form prescribed under subsection (q) of this section and serve such form on the employer or other payer of income, or
(B) in the case of an income withholding order served electronically in accordance with subsection (h) of this section, transmit electronic data sufficient to implement the withholding to an employer that has agreed to receive electronic transmission of income withholding orders and notices;
(7) “Obligor” means a person required to make payments under a support order;
(8) “Support order” means a court order, or order of a family support magistrate including an agreement approved by a court or a family support magistrate, that requires the payment to a dependent of current support, cash medical support, a specific dollar amount of child care costs or arrearage payments;
(9) “Unemployment compensation” means any compensation payable under chapter 567, including amounts payable by the administrator of the unemployment compensation law pursuant to an agreement under any federal law providing for compensation, assistance or allowances with respect to unemployment.
(b) The Superior Court and any family support magistrate shall enter an order for withholding pursuant to this section against the income of an obligor to enforce a support order when the support order is entered or modified or when the obligor is before the court in an enforcement proceeding. The court shall order the withholding to be effective immediately or may, for cause or pursuant to an agreement by the parties, order a contingent withholding to be effective only on accrual of a delinquency in an amount greater than or equal to thirty days’ obligation. Any finding that there is cause not to order withholding to be effective immediately shall be based on at least (1) a written determination that, and explanation by the court or family support magistrate of why, implementing immediate income withholding would not be in the best interests of the child, and (2) proof of timely payment of previously ordered support in cases involving the modification of such support. Before the court or family support magistrate enters an order for withholding which is effective immediately against an obligor who is before the court or a family support magistrate, it shall inform the obligor of the minimum amount of income which is exempt from withholding under state and federal law, of such obligor’s right to claim any applicable state or federal exemptions with respect thereto and of such obligor’s right to offer any evidence as to why a withholding order effective immediately should not enter. If the court or family support magistrate enters an order for withholding to be effective immediately against a nonappearing obligor, notice shall be served subsequently upon the obligor in accordance with section 52-57 or sent by certified mail, return receipt requested, to the obligor’s last-known address, informing such obligor:

(A) That a support order has been entered to be enforced by an income withholding order,
(B) that an income withholding order has been entered effective immediately as part of the support order,
(C) of the minimum amount of income exempt from withholding under state and federal law and of such obligor’s right at the hearing on the support order to claim any other applicable state or federal exemptions with respect thereto,
(D) of such obligor’s right to a hearing, upon motion to the court, to offer any evidence as to why the withholding order effective immediately should not continue in effect,
(E) of the amount of income received by such obligor which formed the basis for the support order against such obligor, and
(F) of such obligor’s right to move to modify the support order if such obligor’s income has changed substantially or if the support order substantially deviates from the child support guidelines established pursuant to section 46b-215a.
(c)

(1) If an obligor is delinquent on support payments on any prior order of support in an amount greater than or equal to thirty days’ obligation, whether or not such order is subject to a contingent income withholding, such obligor shall become subject to withholding and the dependent shall cause a delinquency notice to be served on such obligor. The delinquency notice shall include a claim form and be in clear and simple language informing the obligor that (A) such obligor is delinquent under the support order in a specified amount and any additional amounts accruing until the effective date of the withholding order, (B) a withholding order has become effective against such obligor’s income, (C) such obligor has fifteen days to request a hearing before the court or family support magistrate, and at such hearing such obligor may contest the claimed delinquency and the imposition of the income withholding, seek modification of the withholding order, and claim any lawful exemption with respect to such obligor’s income, (D) such obligor has a right to seek modification of the support order by a proper motion filed with the court or family support magistrate, (E) eighty-five per cent of the first one hundred forty-five dollars of disposable income per week are exempt, and (F) the amount of the withholding order may not exceed the maximum percentage of disposable income which may be withheld pursuant to Section 1673 of Title 15 of the United States Code, together with a statement of such obligor’s right to claim any other applicable state or federal exemptions with respect thereto. The claim form shall contain a checklist identifying the most common defenses and exemptions such that the obligor may check any which apply to the obligor and a space where the obligor may briefly explain the claim or request a modification of or raise a defense to the support order.
(2) An obligor shall become subject to withholding to enforce a prior order of support upon the request of the dependent regardless of any delinquency, and whether or not such order is subject to a contingent income withholding. In such cases, the dependent shall cause a notice to be served on such obligor which notice shall comply in all respects with the delinquency notice required under subdivision (1) of this subsection except that such notice shall not be required to allege a delinquency.
(d) An obligor may claim a defense based upon mistake of fact, may claim an exemption in accordance with subsection (e) of this section with respect to the withholding order, or may file by motion a modification or defense to the support order being enforced by the withholding, by delivering a signed claim form, or other written notice or motion, with the address of the obligor thereon, indicating the nature of the claim or grounds of the motion, to the clerk of the Superior Court or the assistant clerk of the Family Support Magistrate Division within fifteen days of receipt of notice. On receipt of the claim or motion, the clerk shall promptly enter the appearance of the obligor, set the matter for a short calendar hearing, send a file-stamped copy of the claim or motion to the person or agency of the state to whom the support order is payable and notify all parties of the hearing date set. The court or family support magistrate shall promptly hear and determine the claim or motion and notify the obligor within forty-five days from the date of the notice required under subsection (c) of this section of its determination. Unless the obligor successfully shows cause why the withholding order should not continue in effect, the court or family support magistrate shall order that the outstanding withholding order continue in effect against the nonexempt income of the obligor to the extent provided under subsection (e) of this section. The order shall be a final judgment for purposes of appeal. The effect of the withholding order shall not be stayed on appeal except by order of the court or a family support magistrate.
(e) A withholding order shall issue in the amount necessary to enforce a support order against only such nonexempt income of the obligor as exceeds the greater of (1) eighty-five per cent of the first one hundred forty-five dollars per week of disposable income, or (2) the amount exempt under Section 1673 of Title 15 of the United States Code, or against any lesser amount which the court or family support magistrate deems equitable. Subject to subsection (d) of section 46b-88, the withholding order shall secure payment of past and future amounts due under the support order and an additional amount computed in accordance with the child support guidelines established in accordance with section 46b-215a, to be applied toward liquidation of any arrearage accrued under such order, unless contested by the obligor after a notice has been served pursuant to subsection (c) of this section, in which case the court or family support magistrate may determine the amount to be applied toward the liquidation of the arrearage found to have accrued under prior order of the court or family support magistrate. In no event shall such additional amount be applied if there is an existing arrearage order from the court or family support magistrate in a IV-D support case, as defined in subdivision (13) of subsection (b) of section 46b-231. Any investigator or other authorized employee of the Office of Child Support Services within the Department of Social Services, or any officer of Support Enforcement Services of the Superior Court, may issue a withholding order entered by the Superior Court or a family support magistrate pursuant to subsection (b) of this section, and shall issue a withholding order pursuant to this subsection when the obligor becomes subject to withholding under subsection (c) of this section. On service of the order of withholding on an existing or any future employer or other payer of income, and until the support order is fully satisfied or modified, the order of withholding is a continuing lien and levy on the obligor’s income as it becomes due.
(f) Commencing no later than the first pay period in the case of an employer, or the date of periodic payment in the case of a payer of income other than an employer, that occurs after fourteen days following the date of service of an order for withholding and within seven business days of the date the obligor is paid thereafter, an employer or other payer of income shall pay sums withheld pursuant to the withholding order to the state disbursement unit, as required by subsection (p) of this section. The employer or other payer of income (1) shall specify the dates on which each withholding occurred and the amount withheld for each obligor on each such date, and (2) may combine all withheld amounts into a single payment to the state disbursement unit with the portion thereof which is attributable to each individual obligor being separately designated. If an employer or other payer of income fails to withhold from income due an obligor pursuant to an order for withholding or fails to make those payments, such employer or other payer of income is liable to such person for the full amount of income not withheld since receipt of proper notice in an action therefor, and the amount secured in the action shall be applied by such person toward the arrearage owed by the obligor. Such employer or other payer of income shall be subject to a finding of contempt by the court or family support magistrate for failure to honor such order for withholding, provided service of the order is made in accordance with section 52-57 or by certified mail, return receipt requested.
(g) All orders for withholding issued pursuant to this section shall take precedence over any execution issued pursuant to section 52-361 of the general statutes revised to 1983, or section 52-361a. Two or more orders for withholding may be levied concurrently under this section, but if the total levy in any week exceeds the maximum permitted under this section, all sums due shall be allocated by the state disbursement unit in proportion to the amount of such orders, giving priority in such allocation to current support.
(h) Service of any process under this section, including any notice, may be made in accordance with section 52-57, or by certified mail, return receipt requested. If service is made on behalf of the state, it may be made by an authorized employee of Support Enforcement Services, by an investigator or other officer of the Office of Child Support Services within the Department of Social Services, by an investigator of the Department of Administrative Services or by the Attorney General. Service of income withholding orders by Support Enforcement Services or by an investigator or other officer of said office upon an employer under this section may be made in accordance with section 52-57, by certified mail, return receipt requested, by first class mail or electronically, provided the employer agrees to accept service made electronically.
(i) An applicant for employment or an employee subject to an order for withholding issued pursuant to this section shall have the same protection from discipline, suspension or discharge by an employer as provided in section 52-361a.
(j) There shall be a fine of not more than one thousand dollars imposed on any employer who discharges from employment, refuses to employ, takes disciplinary action against or discriminates against an employee subject to an order for withholding issued pursuant to this section because of the existence of such order for withholding and the obligations or additional obligations which it imposes upon the employer.
(k) The employer shall notify promptly the dependent or Support Enforcement Services as directed when the obligor terminates employment, makes a claim for workers’ compensation benefits or makes a claim for unemployment compensation benefits and shall provide the obligor’s last-known address and the name and address of the obligor’s new employer, if known. When the obligor makes a claim for workers’ compensation benefits, the employer shall include a copy of any order for withholding received by the employer for the obligor with the employer’s first report of occupational illness or injury to the employer’s workers’ compensation benefits carrier, and such benefits carrier shall withhold funds pursuant to the withholding order and pay any sums withheld as required by subsection (f) of this section.
(l) When an obligor who is subject to withholding under this section is identified as a newly hired employee pursuant to subsection (d) of section 31-2c, the state agency enforcing the obligor’s child support order shall, within two business days after the date information regarding such employee is entered into the state directory of new hires, issue a withholding order to the employer of the employee in accordance with subsection (e) of this section.
(m) The provisions of this section shall be in addition to and not in lieu of any other remedy available at law to enforce or punish for failure to obey a support order.
(n) When a support order is issued in another state and the obligor has income subject to withholding derived in this state, such income shall be subject to withholding in accordance with the provisions of this section, upon registration of the support order in accordance with subdivision (1) of this subsection or as provided in subdivision (2) of this subsection.

(1) An income withholding order issued in another state and registered in this state shall be subject to the procedures for registration, choice of law, notice to the nonregistering party, contest and confirmation of such order in sections 46b-370 to 46b-380, inclusive.
(2) An income withholding order issued in another state and received directly by an employer in this state shall be subject to the procedures in sections 46b-358 to 46b-364, inclusive. Such employer shall, in addition to following the procedures in said sections, immediately provide to the obligor a copy of the notice and claim form provided by the Department of Social Services pursuant to subparagraph (A) of this subdivision.

(A) The Department of Social Services shall make available to all employers in this state a standard notice and claim form, written in clear and simple language, which shall include (i) notice that money will be withheld from the employee’s wages for child support and health insurance; (ii) notice of the amount of disposable earnings that are exempt from the income withholding order; (iii) notice that the amount of the income withholding order may not exceed the maximum permitted by federal law under 15 USC 1673, together with a statement of the obligor’s right to claim any other applicable state or federal exemptions; (iv) notice of the right to object to the validity or enforcement of such income withholding order in a court in this state and of the right to seek modification of the underlying support order in the court of continuing exclusive jurisdiction; (v) notice of the right to seek the assistance of the Office of Child Support Services of the Department of Social Services and the toll-free telephone number at which the office can be contacted; and (vi) a claim form which shall include (I) a list of the most common defenses and exemptions to such income withholding order in a manner which allows the obligor to check any of the defenses and exemptions which apply; (II) a space where the obligor may briefly explain the obligor’s claim or defense; (III) a space where the obligor may initiate a request for services to modify the support order, and the address of the Office of Child Support Services of the Department of Social Services to which such request may be sent; (IV) a space for the obligor to provide the obligor’s address and the name of the town in which the obligor principally conducts the obligor’s work for the employer; (V) a space for the obligor to sign the obligor’s name; (VI) the address of Support Enforcement Services to which the claim form is to be sent in order to contest the validity or enforcement of the income withholding order; and (VII) space for the employer to state the date upon which the form was actually delivered to the obligor.
(B) An obligor may contest the validity or enforcement of an income withholding order issued in another state and received directly by an employer in this state by following the procedures in section 46b-363 or by mailing to Support Enforcement Services the claim form delivered to the obligor pursuant to this subdivision. Such form shall be signed by the obligor and contain the obligor’s address. A copy of the income withholding order shall be included.
(C) Upon receipt of a claim form contesting the validity or enforcement of an income withholding order, Support Enforcement Services shall:

(i) Give notice of the contest to (I) the support enforcement agency providing services to the obligee;
(ii) each employer that has directly received an income withholding order relating to the obligor; (III) the person designated to receive payments in the income withholding order; and (IV) if the obligee’s address is known, the obligee; (ii) file the claim form and a copy of the income withholding order on behalf of the obligor with the Family Support Magistrate Division; and
(iii) notify the person or agency that sent the income withholding order to file not less than ten days before the scheduled hearing (I) two copies, including one certified copy of the underlying support order, including any modification of such order; and (II) a sworn statement showing the amount of any arrearage together with the last court determination of an arrearage and an accounting of the arrearage since such determination.
(D) Upon receipt of a claim form filed by Support Enforcement Services on behalf of the obligor in accordance with subparagraph (C) of this subdivision, the clerk shall promptly enter the appearance of the obligor, schedule a hearing, and give notice of the hearing to the obligor, Support Enforcement Services, the party initiating the income withholding order, and, if the obligee’s address is known, the obligee. The family support magistrate shall promptly hear and determine the claim and enter the family support magistrate’s determination within forty-five days from the date of the filing of the claim form. The family support magistrate shall utilize the procedures set forth in sections 46b-342 to 46b-344, inclusive, to obtain additional evidence and information as needed for a prompt determination on the claim. If the person or agency that sent the income withholding order fails to file the documents described in subparagraph (C) (iii) of this subdivision or fails to comply with a reasonable request for information or documents made under section 46b-343 or 46b-344, the family support magistrate may (i) continue the hearing for a period of not more than an additional forty-five days and direct Support Enforcement Services to provide such notice as may be appropriate; (ii) order a temporary or partial stay of income withholding for a period not to exceed forty-five days; or (iii) sustain the obligor’s objection to the validity or enforcement of the income withholding order and enjoin the employer from complying with such order. In addition to any notice given by the clerk, upon entry of the decision of the family support magistrate on the claim, Support Enforcement Services shall give notice of the decision to each employer that has directly received an income withholding order related to the obligor, the party initiating the income withholding order, the obligor and, if the obligee’s address is known, the obligee.
(E) If the claim form requests services to modify the support order, the Office of Child Support Services shall assist the obligor to file a motion for modification with the appropriate tribunal of the state of continuing, exclusive jurisdiction in accordance with the law of that jurisdiction. The receipt of the request for modification shall constitute a request for Title IV-D services, but the office may require the making of a formal application. Such assistance shall include, but is not limited to, providing the obligor with information about how such a motion is filed, contacting the state of continuing, exclusive jurisdiction on behalf of the obligor to obtain appropriate forms, and transmitting such forms and applicable information to the appropriate tribunal in such state.
(F) Venue for contested claims under this section shall be the Family Support Magistrate Division of the Superior Court in the judicial district in which the obligor resides, provided (i) if the obligor does not reside in this state, venue shall be in the judicial district of the employer who is subject to the income withholding order, and (ii) if there is an existing action concerning support of the child or children who are the subject of the income withholding order, the claim shall be filed in that action.
(o) An employer who withholds the income of an obligor pursuant to a withholding order issued under subsection (e), (l) or (n) of this section that is regular on its face shall not be subject to civil liability to any individual or agency for conduct in compliance with such order.
(p) All withholding orders issued under this section shall be payable to the state disbursement unit established and maintained by the Commissioner of Social Services in accordance with subsection (j) of section 17b-179. The state disbursement unit shall insure distribution of all money collected under this section to the dependent, the state and the support enforcement agencies of other states, as their interests may appear, within two business days. Each dependent who is not receiving child support enforcement services, as defined in subsection (b) of section 46b-231, shall be notified upon the issuance of a withholding order pursuant to this section, that such services are offered free of charge by the State of Connecticut upon application to the Office of Child Support Services within the Department of Social Services.
(q) The judges of the Superior Court may adopt any rules they deem necessary to implement the provisions of this section and sections 46b-69a, 46b-178 and 52-361a and such judges, or their designee, shall prescribe any forms required to implement such provisions.

Conn. Gen. Stat. ยง 52-362

(1955, S. 3204d; 1959, P.A. 655; 1963, P.A. 33; 1969, P.A. 447, S. 3; P.A. 73-373, S. 38; P.A. 76-66; 76-436, S. 142, 681; P.A. 77-389; 77-594, S. 6, 7; 77-614, S. 70, 610; P.A. 78-217, S. 1; P.A. 80-149, S. 2, 3; P.A. 81-266, S. 1, 2; P.A. 82-433, S. 2; P.A. 83-295, S. 17; 83-400, S. 1; 83-581, S. 34, 40; P.A. 84-455, S. 4, 5; 84-527, S. 17, 18; 84-546, S. 115, 116, 173; P.A. 85-548, S. 1; P.A. 86-359, S. 36, 44; P.A. 87-483, S. 1, 3; P.A. 89-302, S. 1, 7; P.A. 90-213, S. 38, 56; P.A. 91-391, S. 10; P.A. 92-253, S. 4; P.A. 93-262, S. 1, 87; P.A. 96-268, S. 9, 34; June 18 Sp. Sess. P.A. 97-1, S. 71, 75; June 18 Sp. Sess. P.A. 97-7, S. 28, 38; P.A. 99-193, S. 6; P.A. 00-68, S. 4, 5; 00-196, S. 35; P.A. 01-91, S. 19 -22; June Sp. Sess. P.A. 01-2, S. 27, 28, 69; June Sp. Sess. P.A. 01-9, S. 129, 131; P.A. 03-89, S. 6, 7; P.A. 07-247, S. 62, 63; P.A. 11-214, S. 31; 11-219, S. 9, 10; 11-233, S. 13, 14; P.A. 15-71, S. 91, 92; P.A. 16-13, S. 16 -20; P.A. 17-27, S. 1; 17-48, S. 15, 16.)

Amended by P.A. 17-0027, S. 1 of the Connecticut Acts of the 2017 Regular Session, eff. 1/1/2018.
Amended by P.A. 17-0048, S. 16 of the Connecticut Acts of the 2017 Regular Session, eff. 10/1/2017.
Amended by P.A. 17-0048, S. 15 of the Connecticut Acts of the 2017 Regular Session, eff. 10/1/2017.
Amended by P.A. 16-0013, S. 20 of the Connecticut Acts of the 2016 Regular Session, eff. 5/6/2016.
Amended by P.A. 16-0013, S. 19 of the Connecticut Acts of the 2016 Regular Session, eff. 5/6/2016.
Amended by P.A. 16-0013, S. 18 of the Connecticut Acts of the 2016 Regular Session, eff. 5/6/2016.
Amended by P.A. 16-0013, S. 17 of the Connecticut Acts of the 2016 Regular Session, eff. 5/6/2016.
Amended by P.A. 16-0013, S. 16 of the Connecticut Acts of the 2016 Regular Session, eff. 5/6/2016.
Amended by P.A. 15-0071, S. 92 of the Connecticut Acts of the 2015 Regular Session, eff. 7/1/2015.
Amended by P.A. 15-0071, S. 91 of the Connecticut Acts of the 2015 Regular Session, eff. 7/1/2015.
Amended by P.A. 11-0233, S. 14 of the the 2011 Regular Session, eff. 10/1/2011.
Amended by P.A. 11-0233, S. 13 of the the 2011 Regular Session, eff. 10/1/2011.
Amended by P.A. 11-0219, S. 10 of the the 2011 Regular Session, eff. 10/1/2011.
Amended by P.A. 11-0219, S. 9 of the the 2011 Regular Session, eff. 10/1/2011.
Amended by P.A. 11-0214, S. 31 of the the 2011 Regular Session, eff. 10/1/2011.

Amount of execution against pension benefits to be calculated under this section rather than Sec. 52-361 where it is for family support; court included this section with Sec. 52-361 by implication in exemption exception referenced in Sec. 52-352c(d). 178 Conn. 675. Cited. 240 Conn. 623. Cited. 28 Conn.App. 794; 33 Conn.App. 395. Payments from pension trust fund are susceptible to wage execution under section and notification to trustees of such action is not required, and therefore trustees need not be made parties. 37 Conn.Supp. 566. Cited. Id., 840. Subsec. (b): Court must provide notice to the party of party’s statutory rights to claim exemptions or to present evidence that a withholding order should not issue immediately; court must then issue withholding order immediately unless cause exists for contingent wage withholding order. 51 CA 530. Subsec. (d): Doctrine of laches and equitable estoppel may apply under Subsec. and obligor in this case was entitled to assert doctrine of laches to stop wage withholding order where defendant had left state with child and not forwarded address as required by court order, and waited 10 years to file any motion re support, and where obligor had made unsuccessful attempts to locate and contact the child. 108 CA 376.

See Sec. 46b-69a re executions and earning assignments available in actions for dissolution of marriage, annulment and legal separation.