2006 Code of Virginia § 63.2-1929 - Orders to withhold and to deliver property of debtor; issuance and service; contents; right to appe...

63.2-1929. Orders to withhold and to deliver property of debtor; issuanceand service; contents; right to appeal; answer; effect; delivery of property;bond to release; fee; exemptions.

A. After notice containing an administrative support order has been served orservice has been waived or accepted, an opportunity for a hearing has beenexhausted and a copy of the order furnished as provided for in 63.2-1916,or whenever a court order for child or child and spousal support has beenentered, the Commissioner is authorized to issue to any person, firm,corporation, association, political subdivision or department of theCommonwealth, orders to withhold and to deliver property of any kindincluding, but not restricted to, income of the debtor, when the Commissionerhas reason to believe that there is in the possession of such person, firm,corporation, association, political subdivision or department of theCommonwealth, property that is due, owing, or belonging to such debtor. Theorders to withhold and to deliver shall take priority over all other debtsand creditors under state law of such debtor including the proceeds oranticipated proceeds of a personal injury or wrongful death award orsettlement except that the Department's lien shall be inferior to those lienscreated under 8.01-66.2 or 8.01-66.9, any statutory right of subrogationaccruing to a health insurance provider, and the lien of the attorneyrepresenting the injured person in the personal injury or wrongful deathaction. However, orders to withhold and to deliver shall not take prioritywith respect to a prior payroll deduction or income withholding orderpursuant to 20-79.1, 20-79.2, 63.2-1923 or 63.2-1924. The Departmentshall have the sole authority to negotiate settlement of its liens.Settlement of the Department's support liens does not affect the remainingsupport arrearages.

B. The order to withhold shall also be served upon the debtor within areasonable time thereafter, and shall state the amount of the support debtaccrued. The order shall state in summary the terms of 63.2-1925 and63.2-1930 and shall be served in the manner prescribed for the service of awarrant in a civil action or by certified mail, return receipt requested. Theorder to withhold shall advise the debtor that this order has been issued tocause the property of the debtor to be taken to satisfy the debt and adviseof property that may be exempted from this order. The order shall also advisethe debtor of a right to appeal such order based upon a mistake of fact andthat if no appeal is made within ten days of being served, his property issubject to be taken.

C. If the debtor believes such property is exempt from this debt, within 10days of the date of service of the order to withhold, the debtor may file anappeal to the Commissioner stating any exemptions that may be applicable. Ifthe Commissioner receives a timely appeal, a hearing shall be promptlyscheduled before a hearing officer upon reasonable notice to the obligee. TheCommissioner may delegate authority to conduct the hearing to a dulyqualified hearing officer who shall consider the debtor's appeal. Action bythe Commissioner under the provisions of this chapter to collect such supportdebt shall be valid and enforceable during the pendency of any appeal.

The decision of the hearing officer shall be in writing and shall set forththe debtor's rights to appeal an adverse decision of the hearing officerpursuant to 63.2-1943. The decision shall be served upon the debtor inaccordance with the provisions of 8.01-296, 8.01-327 or 8.01-329 ormailed to the debtor at his last known address by certified mail, returnreceipt requested, or service may be waived. A copy of such decision shallalso be mailed to the obligee. Such decision shall establish whether thedebtor's property is exempt under state or federal laws and regulations.

D. Any person, firm, corporation, association, political subdivision ordepartment of the Commonwealth upon whom service has been made is herebyrequired to answer such order to withhold within 10 days, exclusive of theday of service, under oath and in writing, and shall file true answers to thematters inquired of therein. In the event there is in the possession of anysuch person, firm, corporation, association, political subdivision ordepartment of the Commonwealth, any property that may be subject to the claimof the Department, such property shall be withheld immediately upon receiptof the order to withhold, together with any additional property received bysuch person, firm, corporation, association, political subdivision, ordepartment of the Commonwealth valued up to the amount of the order untilreceipt of an order to deliver or release. The property shall be delivered tothe Commissioner upon receipt of an order to deliver; however, distributionof the property shall not be made during pendency of all appeals. Where moneyis due and owing under any contract of employment, express or implied, or isheld by any person, firm, corporation, or association, political subdivisionor department of the Commonwealth subject to withdrawal by the debtor, suchmoney shall be delivered by remittance payable to the order of the Treasurerof Virginia. The person, firm, corporation, political subdivision ordepartment of the Commonwealth herein specified shall be entitled to receivefrom such debtor a fee of $5 for each answer or remittance on account of suchdebtor. The foregoing is subject to the exemptions contained in 63.2-1925and 63.2-1933.

E. Delivery to the Commissioner shall serve as full acquittance and theCommonwealth warrants and represents that it shall defend and hold harmlessfor such actions persons delivering money or property to the Commissionerpursuant to this chapter.

F. An order issued to an employer for withholding from the earnings of anemployee pursuant to this section shall conform to 20-79.3. The rights andobligations of an employer with respect to the order are set out in 20-79.3.

(1974, c. 413, 63.1-256; 1975, cc. 54, 311; 1976, c. 357; 1977, c. 662;1980, c. 243; 1983, c. 481; 1984, c. 652; 1985, c. 488; 1987, c. 640; 1988,c. 906; 1990, cc. 896, 950; 1992, c. 716; 1998, c. 727; 2002, c. 747; 2003,cc. 929, 942.)