AGO 96-F-024.

• Court: North Dakota

North Dakota Attorney General Opinions 1996. AGO 96-F-024. STATE OF NORTH DAKOTA ATTORNEY GENERAL'S OPINION 96-F-24Date issued: December 31, 1996Requested by: Doug Mattson, Ward County State's Attorney- QUESTIONS PRESENTED - I.Whether funds received by a clerk of court from or on behalf of a child support obligor in excess of the obligor's monthly child support obligation can be applied by the clerk to reduce or suspend the amount of child support required to be withheld and paid to the clerk under an income withholding order. II. How should funds received by a clerk of court from or on behalf of a child support obligor in excess of the obligor's monthly child support be treated by the clerk in relation to an obligor's future monthly support obligations and any arrears? - ATTORNEY GENERAL'S OPINIONS - It is my opinion that funds received by a clerk in excess of the obligor's monthly child support obligation do not affect the obligor's "current monthly support obligation" under a court order or judgment, and therefore cannot be applied by the clerk to reduce or suspend amounts due under an income withholding order unless the excess funds eliminate any arrearages owed by the obligor. It is my opinion that the amount of funds received by the clerk in excess of the obligor's monthly child support obligation must be applied to reduce any child support arrears owed by the obligor when the funds are received and may otherwise be returned to the obligor or treated as a voluntary payment for the immediate benefit of the supported child or children, but may not be treated as a prepayment of future monthly child support obligations. - ANALYSES - I. State law requires that child support "be paid to the clerk of court, as trustee, for remittance to the obligee." N.D.C.C. § 14-09-08.1(1). The phrase "child support" is defined in N.D.C.C. § 14-09-09.10(1) to mean "payments for the support of children. . . if the payment is required by the order of a court." (Emphasis added.) The question presented results from cases where a clerk of court receives funds from or on behalf of a person owing child support (obligor) in excess of the monthly amount the obligor is required to pay by an order of the court.(fn1) Child support is frequently paid by an income payor under an income withholding order rather than by the obligor directly. See generally N.D.C.C. § 14-09-09.10(6), (7) ("income" and "income payor" defined); 1990 N.D. Op. Att' y Gen. 115, 117 (four types of income withholding). With limited exceptions not relevant to this opinion, every judgment or order requiring the payment of child support that is issued or modified after January 1, 1990, subjects the income of the obligor to immediate income withholding. N.D.C.C. § 14-09-09.24. Income withholding may also be...