ESTABLISH ORDER

CS 385P Alternative to Setting Aside Administrative Orders

08/88 Revised 09/03/08 Training Completed 05/18/04

UCA 63G-4-102(4)(a), 78B-3-208; R527-200-9, 12

 

385.1 Statute Authority

 

U.C.A. 63G-4-102(4)(a) states, “This chapter does not preclude an agency, prior to the beginning of an adjudicative proceeding, or the presiding officer during an adjudicative proceeding from:
     (a) requesting or ordering a conference with parties and interested persons to:
     (i) encourage settlement;
     (ii) clarify the issues;
     (iii) simplify the evidence;
     (iv) facilitate discovery; or

     (v) expedite the proceeding;”

 

U.C.A. 78B-3-208 states, “(1) A default judgement may not be entered until the expiration of at least 30 days after service.
     (2) A default judgment entered on service may be set aside only on a showing which would be timely and sufficient to set aside a default judgment entered on personal service within this state.”

 

R527-200-9 states, “The respondent may request an informal adjudicative proceeding within the following timeframes:

1. within 30 calendar days of the date of the notice when contesting the amount of past-due support in the Annual Notice of Past-due Support;

2. within 15 calendar days of the date of this notice, or within 30 calendar days of the date of this notice if the non-requesting party resides outside of Utah and intervention is required from another IV-D agency to facilitate communication with the non-requesting party, when contesting whether location information or other location information may be released; and

3. within 15 calendar days of the date of the notice when contesting the obligation based on a change in physical custody of the child.”

 

R527-200-12 states, “Telephonic hearings will be held at the discretion of the Office of Administrative Hearings, Department of Human Services.”

 

Any administrative order issued by the Office of Recovery Services/Child Support Services (ORS/CSS) must be set aside by CSS for good cause shown.  If the respondent does not meet any of the criteria as outlined in CS 383P, CS 384P or Rule 60(b), Utah Rules of Civil Procedure, but support guidelines indicate that the award should be (or should have been) lower, take the following steps.

 

1.                  Gather income information.  Request income information from the respondent contesting the order.  Depending upon how old the order is, also contact the other parent/respondent to determine if his/her circumstances have changed since the original order was issued. 

 

2.                  Complete a guidelines worksheet.    

 

3.                  Compare the new worksheet amounts to the existing worksheet.  If there is a change in the support amount that meets the criteria for a modification for either party (15% change if the order is less than three years old or 10 % change if the order is more than three years old) and the change is not of a temporary nature, you must adjust the support order amount in accordance with the guidelines.  If the change does not meet the modification criteria due to a mistake (e.g. the non-custodial parent {NCP} may have failed to participate and/or provide the correct information), you may determine that a change in the current support amount is warranted to correct the mistake.  Consult with your management chain (Manager, Associate Regional Director, Regional Director, and CSS Director) on a case-by-case basis. 

 

4.                  Correct the current support amount prospectively.  Obtain a new order that reflects the new current support amount in one of the following ways.

a.                   Attempt to negotiate a stipulation with both parties.  If both respondents (or the respondent on a one-parent order) will stipulate to a modification (upward or downward, based upon the current application of the Child Support Guidelines), prepare an “Order:  Stipulation and Order:  Modified Child Support – Two Parents.” Indicate that the new current support amount is effective from the month of the assessment forward.

b.                  Complete Review and Adjustment process.  If the new worksheet indicates that there is a change that meets the modification criteria but the respondent(s) will not sign a stipulation, you must adjust the award using review and adjustment procedures.  This includes serving the respondents a “Notice of Agency Action:  Modify Administrative Order,” following all UAPA procedures, and issuing a new order.  The existing order remains in effect during this process.

 

5.                  Decide how to handle the arrears balance.  You have two options for the arrears balance that accrued under the existing order:

a.                   Discount the total amount owed under the existing order as part of a settlement offer to the NCP; or,

b.                  Enforce the total amount owed under the existing order.  If the custodial parent (CP) on a Non-IV-A case does not agree to a settlement, if you do not offer a discounted settlement, or if the non-custodial parent cannot pay the settlement offer, you may leave the original judgment and past-due arrears in place and enforce the total amount owed under the old order.

 

EXAMPLE:  The NCP, a long-haul truck driver, was served with a Notice of Agency Action covering 10 months at $217 per month for one child.  The NCP failed to respond so an “Order:  Child Support,” showing default by the NCP, was issued.  Current support was ordered in the amount of $217 per month and $2170 was reduced to a sum-certain judgment.  When the team relocated the NCP and began enforcing the order ten months later, the NCP decided to participate in an assessment conference because of the enforcement activity.  It was determined during the assessment that the NCP should pay $150 per month for one child.  You may resolve the prospective current support amount and the arrears debts in the following ways:

 

1.                  Current Support

a.                   Option 1:  Both parents sign an administrative “Stipulation and Order:  Modified Child Support – Two Parents” to modify the current support order to $150 per month prospectively. 

b.                  Option 2:  If both parents will not sign an administrative stipulation agreeing to modify the current support, prepare and send the “Notice of Agency Action:  Modify Child Support” according to review and adjustment procedures.  Issue a new order after allowing the appropriate response timeframe and following all applicable UAPA procedures.

 

2.                  Arrears

a.                   Option 1:  The NCP is offered and pays a discounted settlement amount that covers all arrears up to the effective date of the new order.  

b.                  Option 2:  The judgment and past-due arrears per the original “Order:  Child Support” are left in place and collected without any reduction to the amount.