ESTABLISH ORDER

CS 383P Set Aside Default Orders

08/88 Revised 09/03/08 Training Completed 04/21/05

UCA 63G-4-209(3);  R527-200-17

 

CIC: Refer to procedures found in CS 1383 CIC Set Aside Default Orders.

 

383.1 Statutory Authority

 

Utah Code Annotated UCA 63G-4-209(3) governs the options available to parties who default during the order establishment process:

 

     “(3) (a) A defaulted party may seek to have the agency set aside the default order, and any order in the adjudicative proceeding issued subsequent to the default order, by following the procedures outlined in the Utah Rules of Civil Procedure.
     (b) A motion to set aside a default and any subsequent order shall be made to the presiding officer.
     (c) A defaulted party may seek agency review under Section 63G-4-301, or reconsideration under Section 63G-4-302, only on the decision of the presiding officer on the motion to set aside the default.

Criteria for Setting Aside Default Orders

Utah Administrative Rule R527-200-17 describes when the Office of Recovery Services/Child Support Services (ORS/CSS) can set aside an administrative default order as follows:

“1. The office may set aside an administrative order for reasons including the following:

a. A rule or policy was not followed when the order was taken.

b. The respondent was not properly served with a notice of agency action.

c. The respondent was not given due process.

d. The order has been replaced by a judicial order which covers the same time period.

2. The office shall notify the respondent of its intent to set the order aside by serving the respondent with a notice of agency action. The notice shall be signed by a presiding officer.

3. If after serving the respondent with a notice of agency action, the presiding officer determines that the order shall be set aside, the office shall notify the respondent.”

You may set aside default orders only for the reasons listed in the administrative rule.   

 

If you believe there is a need to set aside a default order for any reason other than those included in the “ORS/CSS Motion to Set Aside Administrative Default Order,” you may request permission through your manager, Associate Regional Director (ARD), and Regional Director (RD).  The Regional Director will discuss the case with the supervisor of the Policy Analyst Unit and the CSS Director.

 

UAPA authorizes the set aside procedure only for default orders.  However, if you believe a stipulation or participation order contains serious errors or has been replaced by another order and therefore should be set aside, you may request permission through your manager, Associate Regional Director (ARD), and Regional Director (RD).  The Regional Director will discuss the case with the CSS Director. 

 

Because the set aside process leaves no order on the case and removes the child support obligation retroactively, the process must be strictly limited to the situations for which it is authorized.  It must not be allowed to effectively undermine the statutory prohibition against retroactive modification of support orders.  Whenever possible, consider other options such as amending or modifying the order rather than setting it aside.

 

Commencing a Set Aside Review

 

If the default option was used on one of the respondents when issuing the administrative order, the defaulted respondent may file a Motion to Set Aside the Default with the Office of Recovery Services/ Child Support Services (ORS/CSS).  The Motion to Set Aside can be filed at any time after the default order is issued.  There is no specific form required for the respondent's Motion to Set Aside; however, the request should be in writing. 

 

The need to set aside a default administrative order may also be discovered by a CSS worker.  If you find a default order that meets the criteria listed above and you believe that a set aside may be needed, discuss the case with your manager, the pre-order presiding officer and, if necessary, the ARD or RD to choose the appropriate method for correcting the order.   

 

Procedures-Set Aside Review

 

Upon receipt of the respondent’s Motion to Set Aside a Default Order or the decision that an internal request to set aside the default order is appropriate, the post-order worker will take the steps listed below. 

 

1.                  Forward the Motion to Set Aside Default Order and the physical case file to the Presiding Officer who issued the support order.

 

2.                  Monitor any enforcement activity already in progress.  Do not initiate any new enforcement activity.   

 

When the pre-order presiding officer receives the Motion to Set Aside or the internal request for set aside, the presiding officer will take the following steps.

 

1.                  Review the respondent's case record.  Ensure that all pertinent documentation is readily available (e.g., original Notice of Agency Action, proof of service, and any support orders).

 

2.                  Review any evidence provided by the respondent in support of the Motion to Set Aside Default.

 

3.                  Review the approved criteria for setting aside a default order.  The Presiding Officer may set aside a default order for any of the reasons listed in Administrative Rule R527-200-17:

a.                   “A rule or policy was not followed when the order was taken.” [R527-200-17 (1)(a)]

EXAMPLE 1:  An administrative default order was taken when a judicial order already existed.

 

EXAMPLE 2:  An administrative default order was issued without long-arm jurisdiction over an out-of-state respondent.

b.                  “The respondent was not properly served with a notice of agency action.”  [R527-200-17 (1)(b)]

EXAMPLE:  A respondent can provide sufficient evidence that he/she was not at the service address at the time of service and that the documents were not later received by the respondent during the response timeframe.

c.                   The respondent was not given due process.” [R527-200-17 (1)(c)]

EXAMPLE:  A respondent filed a hearing request within the response timeframes that was misrouted by CSS.  The default order was issued without conducting the administrative hearing.

d.                  “The order has been replaced by a judicial order which covers the same time period.”  [R527-200-17 (1)(d)]  Consult with the Attorney General’s Office (AGO) on a case-by-case basis for assistance in reviewing jurisdictional issues and deciding if it is necessary to set aside the administrative default order.  Document the decision in the case-level narratives.

EXAMPLE 1:  CSS serves a Notice of Agency Action in November 2003. In December 2003, the parties file for divorce in district court.  CSS completes an administrative default order in January 2004 that includes an arrears judgment from January 2003 to December 2003.  When the judicial order is complete in June 2004, it contains a judgment from January 2003 to May 2004 (the amounts do not matter).  This judicial order includes the timeframes in the administrative default order, so a set aside may be appropriate since the judicial arena actually had jurisdiction when the administrative default order was issued.  The AGO will consider the case circumstances and advise whether to proceed with the set aside.

 

EXAMPLE 2:  In January 2004, CSS issues an administrative default order that contains a judgment from January 2003 to December 2003.  In February 2004, the parties file a judicial action.  The resulting judicial order duplicates the administrative default order’s timeframes from January 2003 to December 2003, but the administrative default order may not need to be set aside because administrative jurisdiction was appropriate at the time the default order was issued.  The AGO will consider the case circumstances and advise whether to proceed with the set aside.

e.                   Other reasons when approved by the manager, ARD or RD, and the CSS Director.  Document the approval.

 

4.                  Determine whether to grant the Motion to Set Aside Default.

 

5.                  Motion to Set Aside Granted:  If you, as the Presiding Officer, determine that there is good cause for granting the respondent's Motion to Set Aside the Default Order, take the following steps.

a.                   Prepare the “Notice of Agency Action: Set Aside Order.”  This form requires your manager's approval and signature.

b.                  Send the notice to both parents/respondents (unless you are only pursuing one parent). 

c.                   Monitor for response to the notice.  Do not set aside the original order until the respondents have had the full 30 days to respond.  If you have personal contact with either respondent, advise the respondent that the other parent will be given the opportunity to respond to the changes in the order before it becomes effective.

d.                  Observe all applicable UAPA procedures found in the Establish Order sections of Volume 2.  The respondents will have the opportunity to attend a conference, request a hearing, request reconsideration, etc.  Once all of the appropriate UAPA procedures have been followed, the 30-day response timeframes have passed, and you have determined that it is appropriate to set aside the default order, proceed to the next step.

e.                   Prepare the “Order:  Set Aside Administrative Award.”.  When issuing this document, decide if you are only setting aside the default order or if the Notice of Agency Action should also be set aside.  Choose the options on document generation accordingly.

i.                     If you set aside the “Order: Child Support” but do not dismiss the Notice of Agency Action, schedule a new conference for the respondents to present further evidence. 

 

NOTE:  If the evidence results in a change to the worksheet that would increase the obligation of one of the parties to an amount higher than that in the original Notice of Agency Action, you must send out an amended NAA to both parties.  The amended NAA may be sent by first class mail to the address where the Notice of Agency Action was served.  If you know that a party has moved, send the NAA to the new address by certified mail.  Follow all UAPA procedures and timeframes as explained in the Establish Order sections of Volume 2.  You do not need to send an amended NAA if the change in the worksheet would lower the amounts for both parents or if both parents will sign a stipulation agreeing to the higher amounts.

ii.                   If you set aside the “Order: Child Support” and dismiss the Notice of Agency Action, the responsible agent must prepare and serve a new NAA before issuing a new order unless the respondents agree to sign a new Stipulation.  Follow all UAPA procedures and timeframes as explained in the Establish Order sections of Volume 2.

f.                    Send a copy of the “Order:  Set Aside Administrative Award” to the respondents and the CSS docket unit.

g.                   Notify the post-order worker to terminate any enforcement activity in place and issue any appropriate refunds.

 

6.                  Motion to Set Aside Denied:  If you, as the Presiding Officer, deny the respondent's motion to set aside the default order, take the following steps.

a.                   Issue an “Order Denying Motion to Set Aside Default.” 

b.                  Document the decision in the case narratives.

 

When the file is returned to post-order, the post-order agent will continue all enforcement activity.

 

Respondent’s Procedures to Contest an “Order Denying Motion to Set Aside Default”

 

If the respondent who submitted the Motion to Set Aside Default wishes to contest an “Order Denying Motion to Set Aside Default,” he/she may submit a request for reconsideration of the denial within 20 days of the date the denial was issued or may file a petition for judicial review of the order within 30 days.   

 

If the respondent requests reconsideration of the decision to deny the Set Aside Motion, you may continue enforcement action until and unless a decision is made to set aside the default order.  If the default order is set aside and not replaced by a new order, you must stop enforcement action.

 

Administrative Order Issued Against the Wrong Person

 

If an individual or his/her legal counsel contacts the Office of Recovery Services/ Child Support Services (ORS/CSS) and verifies that the default order was issued against the incorrect person (such as someone with the same or similar name), cooperate and comply with any reasonable request.  Generally, this will include setting aside the default order (including the NAA), and issuing a letter of explanation. 

 

A telephone call or letter from the individual and sufficient evidence to prove that the default order is against the incorrect individual is considered a motion to set aside the default.  Follow the procedures listed above, including serving the Notice of Agency Action:  Set Aside Order” on the other respondent to allow the other parent to contest the claim of mistaken identification.   

 

If the evidence is clear and convincing, and immediate resolution of the situation is needed to prevent further problems, consult with your management chain (Manager, Associate Regional Director, Regional Director, and CSS Director) to obtain permission to proceed with the “Order:  Set Aside Administrative Award” without serving the notice.  

 

If requested by the individual, prepare a letter explaining that the default order was issued against the wrong person.  Forward a copy of the letter to the individual and any other entity requested by the individual, such as a bank, title company, attorney, or credit reporting agency.