TITLE 15
Domestic Relations

CHAPTER 15-19
Child Support Security Deposit Act

SECTION 15-19-2


§ 15-19-2 Order for deposit of assets to secure future support payments.

(a)(1) Subject to subsections (b) and (c) of this section, in any proceeding where the court has ordered either or both parents to pay any amount of the support of 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 support has been ordered to have been paid stating that the parent or parents so ordered 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 pay support, following notice and opportunity for a hearing, an order requiring that the parent or parents deposit assets to secure future support payments with the family court clerk or any other trustee designated by the court. Upon request of any party the court may also issue an ex parte restraining order as specified in subsection (d) of this section. Upon deposit of any asset which is not readily convertible into money, the court may, not less than twenty (20) days after serving the obligor parent or parents with written notice and a hearing, order the sale of that asset or assets and the deposit of the proceeds with the person designated under this subsection. For purposes of the provisions of title 34, the date of the issuance of the order to deposit assets shall be construed as the date notice of levy on an interest in real property was served on the judgment debtor. When the asset ordered to be deposited is real property, the order shall be certified as judgment in accordance with the provisions of titles 8, 9, 10, and 34. A deposit of real property is made effective by recordation of a mortgage deed running to the family court clerk with the city or town recorder of deeds. The deposited real property and the rights, benefits, and liabilities attached to that property shall continue in the possession of the legal owner.

(2) Upon an obligor parent's failure, within the time specified by the court, to make reasonable efforts to cure the default in child support payments or to comply with a court approved payment plan, if payments continue in the arrears, the family court clerk or trustee designated by the court shall, not less than twenty-five (25) days after providing the obligor parent or parents with a written notice served personally or with return receipt requested, unless a motion or order to show cause has been filed to stop the use or sale, use the money or sell or otherwise process the deposited assets for an amount sufficient to pay the arrearage and the amount ordered by the court for the support, maintenance, and education of the minor child currently due.

(3) Assets which have been deposited pursuant to an order issued in accordance with subdivision (1) of this subsection shall be construed as being assets subject to levy pursuant to the provisions of title 34. The sale of assets shall be conducted in accordance with the provisions of title 34.

(4) The family court clerk or trustee designated by the court may deduct from the deposited money the sum of one dollar ($1.00) for each payment made pursuant to subdivision (2) of this subsection.

(5) An obligor parent alleged to be in arrears under this chapter may employ any of the following grounds as a defense to the motion filed pursuant to subdivision (1) of this subsection, or as a basis for filing a motion to stop a sale or use of assets under subdivision (2) of this subsection:

(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 the obligor parent residing with the obligor parent that outweighs the impact of denial of the motion or stopping the sale on obligee;

(vi) Serious impairment of the ability of the obligor parent to generate income; or

(vii) Other emergency conditions.

(6) An obligor parent must rebut the presumptions that nonpayment of child support was willful, without good faith, and that the obligor had the ability to pay the support.

(7) An obligor parent may file a motion to stop the use of the money or the sale of the asset pursuant to subdivision (2) of this subsection within fifteen (15) days after service of notice on him or her pursuant to subdivision (2) of this subsection. The clerk of the court shall set the motion for a hearing not less than twenty (20) days after service on the 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 following conditions exists:

(1) The obligor parent is not receiving salary or wages subject to an assignment pursuant to § 15-5-16.2; and there is reason to believe 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 support obligation, for reasons other than a change of circumstances which would qualify for a reduction in the amount of child support ordered;

(3) The job history of the obligor parent shows that an assignment of a portion of salary or wages pursuant to § 15-5-16.2 would be difficult to enforce or would not be a practical means for securing the payment of the support obligation, due to circumstances including, but not limited to, multiple concurrent or consecutive employers.

(c) The designation of assets subject to an order pursuant to subdivision (1) of subsection (a) shall be based upon concern for maximizing the liquidity and ready conversion into cash of the deposited asset. In all instances, the assets shall include a sum of money up to or equal in value to one year of support payments or six thousand dollars ($6,000), whichever is less, or any other assets, personal or real, designated by the court which equal in value up to one year of payments for support of the minor child, or any other amount in the discretion of the family court. In lieu of depositing cash or other assets as provided above, the obligor parent may, if approved by the court, provide a performance bond secured by any real property or other assets of the parent and equal in value to one year of payments.

(d) During the pendency of any proceeding pursuant to this chapter, and upon the application of either party in the manner provided by the provisions of title 34, the court may, without a hearing, issue ex parte orders restraining any person from transferring, encumbering, hypothecating, concealing, or in any way disposing of any property, real or personal, whether community, quasi-community, or separate, except in the usual course of business or 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 extraordinary expenditures and to account to the court for all such extraordinary expenditures. 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 the date of the order, at which time the ex parte order shall expire. Any order issued pursuant to this chapter shall state on its face the date of expiration of the order, which shall expire in one year or upon deposit of assets or money pursuant to subdivision (1) of subsection (a), whichever occurs first. The court, at the hearing, shall determine for which property the obligor parent shall be required to report extraordinary expenditures and shall specify what is deemed an extraordinary expenditure for purposes of this subsection.

(e) The family court clerk or trustee designated by the court pursuant to subsection (a) of this section, who is responsible for any money or property and for any disbursements under this chapter, shall not be held liable for any action undertaken in good faith and in conformance with this chapter.

(f)(1) The family court clerk or trustee designated by the court shall return all assets subject to court order under subdivision (1) of subsection (a) to the obligor parent or parents when both of the following occur:

(i) One year has elapsed since the court issued the order described under subdivision (1) of subsection (a); and

(ii) The obligor parent or parents have made all support payments on time during that one year period.

(2) When the above criteria have been satisfied and when the deposited asset was real property, the family court clerk or trustee designated by the court shall prepare a release, and shall request the clerk of the court where the order to deposit assets was rendered to certify the release and record it in the office of the recorder of deeds in the city or town where the property is located.

(g) The family court clerk or trustee shall, if requested by the obligor parent, prepare a statement setting forth disbursements and receipts made under this chapter.

(h) If the family court clerk, trustee, or person designated under subsection (a) of this section incurs fees or costs under this chapter which are not compensated by the deduction under subdivision (3) of subsection (a), including, but not limited to, fees or costs incurred in any sale of assets pursuant to subsection (a) of this section and in the preparation of a statement pursuant to subsection (g) of this section, the court shall hear not less than twenty (20) days after service upon the obligor parent of the notice of motion or order to show cause by the family court clerk, trustee, or person designated under subsection (a) of this section incurring the fees or costs, and order the obligor parent or parents to pay reasonable fees and costs. Fees and costs ordered to be paid by the court under this subsection shall be in addition to any deposit made under subsection (a) of this section, but shall not exceed five percent (5%) of one year's child support obligation or the total amount ordered deposited under subdivision (1) of subsection (a), whichever is less.

(i) The purpose of this chapter is to provide an extraordinary remedy for cases of bad faith failure to pay child support obligations.

History of Section.
(P.L. 1993, ch. 462, § 1.)