Though we are loath to put words in the mouth’s of others, an issue has arisen for which we would like some clarification. In one of our cases, opposing counsel recently told Melinda B. Call, of Long Okura P.C., that Commissioner Michael Evans in Utah Third District Court had been heard to recommend (in a different case) that child support be paid by the 1st of the month and pointed to Utah Code as support for that due date. Opposing counsel said that he heard Commissioner Evans say that the law had changed in 2006 that made child support due on the first of each month, rather than being due 1/2 on the 5th and 1/2 on the 20th of each month.
Going back to the books, we found that prior Utah Code Ann. section 78-45-9.3 stated:
(1) All monthly payments of child support shall be due on the 1st day of each month for purposes of child support services pursuant to Title 62A, Chapter 11, Part 3, income withholding services pursuant to Part 4, and income withholding procedures pursuant to Part 5. (2) For purposes of child support services and income withholding pursuant to Title 62A Chapter 11, Part 3 and Part 4, child support is not considered past due until the 1st day of the following month. For purposes other than those specified in Subsection (1) support shall be payable 1/2 by the 5th day of each month and 1/2 by the 20th day of that month, unless the order or decree provides for a different time for payment.
This code provision has been modified slightly and recodified in February 2008. The provision now appears as Utah Code Ann. section 78B-12-112, which states:
(1) All monthly payments of child support shall be due on the 1st day of each month pursuant to Title 62A, Chapter 11, Part 3, Child Support Services Act, Part 4, Income Withholding in IV-D Cases, and Part 5, Income Withholding in Non-IV-D Cases. (2) For the purposes of child support services and income withholding pursuant to Title 62A, Chapter 11, Part 3 and Part 4, child support is not considered past due until the 1st day of the following month. For purposes other than those specified in Subsection (1) support shall be payable 1/2 by the 5th and 1/2 by the 20th of that month, unless the order or decree provides for a different time for payment.
As you can see, the change is merely adding specificity to subsection (1) as to specific titles of code “part” references. Other than that, the code remains the same.
This firm has historically interpreted this code to mean that the due date for child support is the 1st if, and only if, the order for support was pursued BY THE OFFICE OF RECOVERY SERVICES (ORS) under Title 62A, Chapter 11, Parts 3, 4, or 5. However, we have always read subsection (2) to mean that a request for an order of child support in a divorce, paternity or custody case, brought by a party to the action, has child support due dates of 1/2 on the 5th of the month and 1/2 on the 20th, unless otherwise specified by order or decree.
It would seem that the most liberal reading of this provision could allow the Office of Recovery Services to collect on the 1st if a divorce, paternity, or custody order was issued by a court and then the parent receiving support went to ORS for assistance with collection of the child support. We have never understood this provision to change the due dates for support when ORS is not involved in the case or in the collection of child support.
We would welcome any input from the Utah Bar, the bench, or others, as to how to properly interpret Utah Code Ann. section 78B-12-112 and what experience with this provision people are having in court. Thanks for your input!
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