COURTS ‑- SUPERIOR ‑- DIVORCE ‑- COUNTY CLERK ‑- PAYMENTS

COURTS ‑- SUPERIOR ‑- DIVORCE ‑- COUNTY CLERK ‑- PAYMENTS
 
Under the provisions of § 12, chapter 157, Laws of 1973, Ex. Sess., if the court orders that support or maintenance payments be made to the clerk of court as trustee for remittance to the person entitled to receive the payments, this will require that the support or maintenance payments be made into, and then subsequently disbursed out of, the county clerk's trust fund as provided for in RCW 36.48.090.

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                                                                    July 25, 1973
Honorable Paul Klasen
Prosecuting Attorney
Grant County
Ephrata, Washington 98823
                                                                                                               Cite as:  AGLO 1973 No. 82
 
 
Dear Sir:
 
            By recent letter you have requested our opinion on a question which we paraphrase as follows:
 
            Under the provisions of § 12, chapter 157, Laws of 1973, Ex. Sess., if the court orders that support or maintenance payments be made to the clerk of court as trustee for remittance to the person entitled to receive the payments, will this require that the support or maintenance payments be made into, and then subsequently disbursed out of, the county clerk's trust fund as provided for in RCW 36.48.090?
 
            We believe that this question must be answered in the affirmative.
 
                                                                     ANALYSIS
 
            Chapter 157, Laws of 1973, Ex. Sess., is a new act relating to the dissolution of marriages.  Section 12, which is pertinent to your question, deals with support or maintenance payments which have been ordered by the court in which the dissolution proceedings have occurred, and provides as follows:
 
            "(1) The court may, upon its own motion or upon motion of either pary, order support or maintenance payments to be made to:
 
            "(a) The person entitled to receive the payments; or
 
            "(b) The department of social and health services pursuant to chapters 74.20 and 74.20A RCW; or
 
            "(c) The clerk of court as trustee for remittance to the person entitled to receive the payments.
 
             [[Orig. Op. Page 2]]
            "(2) If payments are made to the clerk of court:
 
            "(a) The clerk shall maintain records listing the amount of payments, the date when payments are required to be made, and the names and addresses of the parties affected by the order; and
 
            "(b) The parties affected by the order shall inform the clerk of the court of any change of address or of other conditions that may affect the administration of the order; and
 
            "(c) The clerk of the court shall, if the party fails to make required payment, send by first class mail notice of the arrearage to the obligor.  If payment of the sum due is not made to the clerk of the court within ten days after sending notice, the clerk of the court shall certify the amount due to the prosecuting attorney."
 
            To be read together with this new section is RCW 36.48.090, a long-standing statute which provides as follows:
 
            "Whenever any person has in his custody as clerk of the superior court any funds held in trust for any litigant or for any purpose, they shall be deposited in a separate fund designated 'clerk's trust fund,' and shall not be commingled with any public funds, and in case any interest is paid upon a fund so deposited, it shall be paid to the beneficiary of such trust upon the termination thereof."
 
            It seems to us beyond question that any support or maintenance payments which are paid pursuant to court order under § 12, supra, to "the clerk of court as trustee" must be regarded as "funds held in trust for any litigant or for any purpose" within the meaning of this last-quoted statutory provision.  Accordingly, while we can understand that from a standpoint of convenience it might be thought by some to be more desirable merely to have the clerk serve as a temporary custodian of checks or the like covering support or maintenance payments ‑ simply to be transmitted on by him to the intended recipient in the form received ‑ we do not think that such an informal procedure was within  [[Orig. Op. Page 3]] the contemplation of the legislature when it enacted § 12, chapter 157, supra.
 
            We trust that the foregoing will be of some assistance to you.
 
Very truly yours,
 
SLADE GORTON
Attorney General
 
 
Philip H. Austin
Deputy Attorney General