ESTABLISH ORDER

CS 1365 CIC Default Order

10/82 Revised 04/12/16 Training Completed 06/05/15

 50 U.S.C. 3931; U.C.A. 62A-11-304.2; R527-200-8, R527-200-12

 

 

Before Issuing a Default Order

 

The “Servicemembers Civil Relief Act” (SCRA) states the following found in 50 U.S.C. 3931 Protection of servicemembers against default judgments:

“(b) Affidavit requirement

(1) Plaintiff to file affidavit

In any action or proceeding covered by this section, the court, before entering judgment for the plaintiff, shall require the plaintiff to file with the court an affidavit—

(A) stating whether or not the defendant is in military service and showing necessary facts to support the affidavit; or

(B) if the plaintiff is unable to determine whether or not the defendant is in military service, stating that the plaintiff is unable to determine whether or not the defendant is in military service.”

 

The SCRA requires the Office of Recovery Services/Children in Care (ORS/CIC) to determine whether or not a party is in active military service before issuing a default order.  Active military includes:

1.                   Active military;

2.                   Reservists or National Guards called to active federal duty by the President; or,

3.                   National Guards called to serve for more than thirty days by the President or Secretary of Defense for the purpose of responding to a national emergency.

 

The Affidavit of Military Service form fulfills the requirement to verify military service found in the SCRA above.  The Affidavit of Military Service form contains options for one and two-parent headings to match the type of order you are issuing and allows you to list both the mother’s and father’s military information if both parties have defaulted.  (If only one of the parties has defaulted in a two-party action, it is only necessary to address the defaulting party’s military status within the affidavit, even if you use a two-party heading.)

 

The Attorney General’s Office (AGO) may request the Military Default Affidavit form if they are going to take a default order.  If requested, conduct the research, complete the form and return it to the AGO.

 

NOTE:  If a party to the order is active military, there may be circumstances (e.g., overseas deployment) that do not allow the AGO to move forward on a default order and an order may not be established or entered.

 

To determine if a party is active military use the Defense Manpower Data Center (DMDC) website at   https://www.dmdc.osd.mil/appj/scra/scraHome.do.  This website provides a response within 30 seconds and indicates whether or not the person is active duty at the present time. 

 

 

Administrative Default Procedures

 

1.            Issue an administrative order of default, using the “Order Based on Default:  Child Support” and the “Affidavit of Military Service,” when the respondents are not active duty military or you were unable to verify military status and when:

a.            the respondent(s) fails to participate in an adjudicative proceeding within 30 days of service of a Notice of Agency Action (NAA); and,

b.            the respondent(s) fails to request a hearing within 30 days of service.  Note:  If the respondent(s) requests a hearing before the default is issued, even though the 30 days has lapsed, the respondent(s) is still entitled to a hearing; or,

c.             the respondent(s) fails to attend an agency conference after receiving an Order to Participate in a Preliminary Conference.

 

Note:  If you are including a sum-certain judgment amount for past-due support in the order, include ALL arrears that are owed as of the end of the prior month, including arrears that have accrued after the NAA was served. The NAA contains language that notifies the respondent(s) of the intent to address all arrears in the judgment.  Do not issue a default order for a current support amount greater than what is stated in the NAA.    

 

3.            Before preparing the default order, find as much information as possible using the available locate sources (i.e. the best available income information, the number of dependent children, etc.).

 

4.            Enter the gross monthly income and number of dependent children in the Uniform Child Support Guidelines to determine the respondent’s monthly support obligation. 

 

 

Default Set Aside Request

 

The respondent(s) may ask the Office of Recovery Services/Children in Care (ORS/CIC) to set aside the order by submitting a written request any time after the order is issued.  If you receive a request for a hearing after the order has been issued, inform the respondent(s) that the request will be treated as a Motion to Set Aside the Default Order.