REVIEW AND ADJUSTMENT of a SUPPORT order

CS 450P-3 Procedures for Less Than 3 Year Review

10/90 Revised 08/27/15 Training Completed 07/28/12

U.C.A. 62A-11-304.4, 320.5 and 320.6, 78B-12-202, 111, and 210; R527-231 and 255

 

The overall steps for CSS cases and CIC cases coded for review and adjustment are similar.  Any specific procedural differences discussed in this section will refer to “CSS case coded” or “CIC case coded.”  Every letter used in the review and adjustment process on a CSS case has a parallel letter to be used on a CIC case; however, the automation may not be the same.  Those differences are noted below where they are known.

 

Statutory Authority

 

UCA 78B-12-210.  Application of guidelines – Use of ordered child support, states:

(9) (a) A parent, legal guardian, or the office may at any time petition the court to adjust the amount of a child support order if there has been a substantial change in circumstances. A change in the base combined child support obligation table set forth in Section 78B-12-301 is not a substantial change in circumstances for the purposes of this Subsection (9).
     (b) For purposes of this Subsection (9), a substantial change in circumstances may include:
     (i) material changes in custody;
     (ii) material changes in the relative wealth or assets of the parties;
     (iii) material changes of 30% or more in the income of a parent;
     (iv) material changes in the employment potential and ability of a parent to earn;
     (v) material changes in the medical needs of the child; or
     (vi) material changes in the legal responsibilities of either parent for the support of others.
     (c) Upon receiving a petition under Subsection (9)(a), the court shall, taking into account the best interests of the child:
     (i) determine whether a substantial change has occurred;
     (ii) if a substantial change has occurred, determine whether the change results in a difference of 15% or more between the payor's ordered support amount and the payor's support amount that would be required under the guidelines; and
     (iii) adjust the payor's ordered support amount to that which is provided for in the guidelines if:
     (A) there is a difference of 15% or more; and
     (B) the difference is not of a temporary nature.”

 

Additionally, UCA 62A-11-320.6.   Review and adjustment of support order for substantial change in circumstances outside three-year cycle, states:
    

    “(1) (a) A parent or legal guardian involved in a case receiving IV-D services or the office, if there has been an assignment under Section 35A-3-108, may at any time request the office to review a child support order if there has been a substantial change in circumstances.
     (b) For purposes of Subsection (1)(a), a substantial change in circumstances may include:
     (i) material changes in custody;
     (ii) material changes in the relative wealth or assets of the parties;
     (iii) material changes of 30% or more in the income of a parent;
     (iv) material changes in the ability of a parent to earn;
     (v) material changes in the medical needs of the child; and
     (vi) material changes in the legal responsibilities of either parent for the support of others.
     (2) Upon receiving a request under Subsection (1), the office shall review the order, taking into account the best interests of the child involved, to determine whether the substantial change in circumstance has occurred, and if so, whether the change resulted in a difference of 15% or more between the amount of child support ordered and the amount that would be required under the child support guidelines. If there is such a difference and the difference is not of a temporary nature, the office shall:
     (a) with respect to a support order issued or modified by the office, adjust the amount in accordance with the guidelines; or
     (b) with respect to a support order issued or modified by a court, file a petition with the court to adjust the amount in accordance with the guidelines.
     (3) The office may use automated methods to collect information for a review conducted under Subsection (2).
     (4) (a) A parent or legal guardian who requests a review under Subsection (1) shall provide notice of the request to the other parent within five days and in accordance with Section 62A-11-304.4.
     (b) If the office initiates and conducts a review under Subsection (1), the office shall provide notice of the request to any parent or legal guardian within five days and in accordance with Section 62A-11-304.4.
     (5) Within 30 days of notice being sent under Subsection (4), a parent or legal guardian may file a response to a request for review with the office.”   

If it has been less than 3 years since the support order was issued or modified, the requesting party must provide information supporting the allegation that there has been a substantial change in circumstances for the order to be modified.  The change in circumstances cannot be temporary in nature (see below).  In addition, the amount of the payor’s obligation must change by 15% in order to qualify for a potential modification.  If the requesting party is unable to provide the specific verification to support a substantial change in circumstances and it is easily available to you, you may gather the specific documentation and proceed with the review.

 

NOTE 1:  A parent generally cannot obtain documentation to support a change in income for the other parent.  If the requesting parent states that the other parent’s  has had a material change in income and can provide an explanation why he/she believes that, ORS can assist with obtaining the documentation that may or may not demonstrate a change in wages.

 

NOTE 2:  Generally, the payor in the above instances is the non-custodial parent.  For specified relative or CIC cases, the payor may be either or both parent(s).

 

Temporary Change in Circumstances

 

In order to qualify for a modification, the change in circumstances cannot be temporary in nature.  “Temporary” is defined in rule R527-255-2.  The rule states:  

            1. A parent may request a less than three year review of a support order based on an alleged substantial change in circumstances. For the request to be complete, the parent must provide documentation of the alleged change at his/her own expense.”

 

R527-255-3 states:

 

“1. If the change in circumstances is projected to be temporary, defined as less than 12 months in duration, the office shall not initiate proceedings to adjust the award.

2. If the change in circumstances is projected to be long term or permanent, defined as 12 months or more in duration, the office shall initiate proceedings to adjust the award pursuant to Sections 78B-12-217 and 78B-12- 218”

 

EXAMPLE 1:  The father on the case requested a review.  He has been on disability leave from his job for one month because he is unable to work due to injuries he received in a car accident.  He is presently undergoing physical therapy and when released by his doctor expects to return to the same company making the same amount of pay.  The father has provided a note from his doctor stating he will be released to return to work in two (2) months.  The conclusion is that the change in circumstances is temporary in nature.  (ORS/CSS) will not initiate an action to modify the order.  The father may pursue a modification on his own initiative through private counsel if he wishes.

 

EXAMPLE 2:  The mother on the case requested a review.  She asked for the review because she believes the father is making significantly more money now than when they divorced two years ago.  She is unable to get the income information from the employer, but you are able to easily verify through DWS screens that there has been a significant change in the father’s income.  You may proceed with the review.

 

NOTE:  In the above example the requesting parent (mother) has the ultimate responsibility to provide evidence that a “substantial change in circumstances” has occurred.  However, since the CP is unable to obtain the information and it is easily available to you, you may obtain the specific documentation and proceed with the review if appropriate.  If you are unable to easily obtain specific documentation to support the allegation, the requesting parent is responsible to provide sufficient information for you to gather the evidence to support the allegation before the review can proceed.  If the requesting parent then fails to provide evidence or information to support the alleged substantial change in circumstances, the review will conclude that there is insufficient evidence to initiate a modification action.

 

EXAMPLE 3:  The father on the case requested a review.  He was laid off two (2) months ago from a position where he was earning $20.00 per hour.  He provides a pay stub showing that he is now earning $10.00 per hour.  You have concluded that the change in actual income is long-term and you proceed with the review process.

 

According to UCA 78B-12-210(8)(b) and (9)(c), a change that is “of a temporary nature” does not justify modifying the order.  Unless the parent provides evidence to support that the change is not “of a temporary nature”, the order will not be modified.  

 

If you decide that the evidence clearly indicates that the change in circumstances is temporary, send the “Review Request Denied” letter to the parties to inform them that an action to modify the order will not be pursued because the evidence is not persuasive that a substantial change in circumstances has occurred.  The requesting parent may hire private counsel to pursue the action.

 

Substantial Change of Circumstances Criteria

 

Utah law above describes six conditions that potentially may be considered in determining whether a substantial change of circumstances has occurred.  Only five of the six statutory conditions can be used by the Office of Recovery Service/Child Support Services (ORS/CSS) for determining that a substantial change of circumstances has occurred, and that CSS and/or the AGO should pursue an adjustment.

 

In judicial orders, previous court rulings, findings, and stipulated facts must be considered in conjunction with the present facts and law.  In a less than three year review, there must be a change in circumstances from the time of the controlling order for ORS/CSS to pursue an adjustment.  If there has been no change in circumstance since the court ruling, findings or stipulated facts, deny the modification.

 

The other condition may serve as the basis for a private action by the parties to modify the order, but not normally as a basis for CSS and/or the AGO to pursue the adjustment.

 

The five criteria that CSS will consider for a possible modification are listed below.

 

1.                  Material changes in custody.  The only situation currently addressed by this category is a specified relative case.

a.                   IV-A case – If the specified relative is receiving IV-A cash assistance for the child(ren), continue with the review process.

b.                  Non-IV-A case, legal custody granted – If legal custody has been granted by the district or juvenile court, continue with the review process.

c.                   Non-IV-A case, no legal custody – If legal custody has not been granted, inform the specified relative that CSS is unable to modify the order and s/he must get a new order.  The parent must go to court and have the court address custody and preferably the support issue as well.  However, if the specified relative later returns with a judicial order granting only custody, proceed under b. above.

d.                  IV-E and Non-IV-E case – If legal custody of the child is granted to the state by the Juvenile Court and a written request is received from the parent(s), continue with the review process.

 

2.                  Material changes of 30% or more in the income of a parent.  The change in income cannot be “temporary” in nature. 

 

EXAMPLE 1: A parent is receiving 35% more in income because of a promotion.  A parent is receiving 33% less in income due to a permanent or long term disability.

 

If after analyzing the parents’ actual earnings and the amounts do not meet the 30% criteria, conclude the review and deny the modification based on no substantial change in circumstances.  You must document your evidence and reason for determining income on the Income Worksheet and in the case narratives. 

 

3.                  Material changes in the ability of a parent to earn.   The change in ability to earn cannot be “temporary” in nature (refer to the “Temporary Change in Circumstances” section above), and a decrease in income cannot be “voluntary.”  For example, the parent had an injury that does not allow them to return to the same position at the same pay.

 

4.                  Material changes in the medical needs of the child.  For purposes of the IV-D child support services program, “material changes in the medical needs of a child” refers to a change in circumstances which creates a need to modify the health insurance coverage provision in the order.

 

5.                  Material changes in the legal responsibilities of either parent for the support of others. 

Currently, this category is used only when all of the following conditions exist:

a.                   There is a deviated order;

b.                  A child has emancipated;

c.                   A parent, or the state in IV-A cases, requests a review; and,

d.                  There is not a 30% change in a parent’s income.

 

EXAMPLE:  The parties are no longer responsible for the support of the child, but due to the deviated order, the normal adjustment for an emancipated child cannot be calculated and applied.  One of the parent’s requests a standard (non-deviated) review and modification to accomplish the adjustment. 

 

No Substantial Change in Circumstances

 

If a substantial change of circumstances has NOT occurred for purposes of the child support services case, send the “Review Complete, No Adjustment” letter to the requesting party.  The party may still petition the court.

 

NOTE:  If “UTAH” is the requesting party and the payor’s support amount will not change by at least 10% (higher or lower), send the “Review Complete, No Adjustment” to both participants notifying them that an adjustment of the order will not be pursued.

 

If a party requests a second (or third, etc.) review based on the same set of circumstances as the first review you conducted under the less than 3 year provision, deny the second (or third, etc.) request to review the order.  Send the requesting party the “Review Request Denied” letter.  However, if the party provides information that was not included in the previous request, conduct a review.

 

If it appears a substantial change in circumstances has occurred, the payor’s ordered support amount must change by at least 15% for a modification of the support amount to take place.  Calculate what the new award amount will be and if it will increase/decrease by at least 15% for the payor, proceed to initiate an action to modify the order. 

 

Procedures for Less Than 3 Year Request for Review

 

Follow the steps below to complete the review.

 

1.                  If you are aware that a parent’s income has decreased, or if either parent alleges that either parent’s income has decreased, also send the “Affidavit of Decreased Income” and “Cover Letter to Affidavit of Decreased Income” to the parent(s) whose income(s) may have decreased to obtain more detailed information. 

 

2.                  If the non-requesting parent has failed to return the required documents when the RA180 alert is received, attempt to obtain the best available information regarding the non-requesting parent’s income.  If the requesting party fails to return the XADI (if required), consider this a passive request to terminate the review. 

 

3.                  Complete the “Income Worksheet” and the appropriate Child Support Worksheet(s).  Attach a “Worksheet Income Verification Affidavit” to the Worksheet indicating the reason and the method for determining the income for both parents. 

4.                  Determine if there has been a substantial change in circumstances.  In judicial orders, previous court rulings, findings, and stipulated facts must be considered in conjunction with the present facts and law.  In a less than three year review, there must be a change in circumstances from the time of the controlling order for CSS to pursue an adjustment.  If there has been no change in circumstance since the court ruling, findings or stipulated facts, deny the modification.

a.                   Substantial change – Continue with step 5.

b.                  No substantial change – Go to step 6.

 

5.                   Calculate the difference between the existing award and the new amount for both parents.  In order to pursue a modification, the child support amount for the payor must change, lower or higher, at least 15% and cannot be temporary in nature.  Document your calculations on the Review and Adjustment Worksheet (form XREV or CIC-XREW).  For the definition and examples of a temporary change in circumstance, refer to the “Temporary Change in Circumstances” section above.

 

To determine if there is at least a 15% difference between the existing support award and the new base support award indicated on the Worksheet, calculate the difference between the new base support and the existing award amounts and then divide the difference by the amount of the existing award.  Calculate the difference for each parent, if appropriate.  If there is at least a 15% change in the payor’s obligation, continue the review and adjustment process.

 

EXAMPLE 1:  If the existing award is $150.00 and the new award is $200.00, subtract $150.00 to obtain -$50.00.  Divide $50.00 by $150.00 to obtain 33%.  Since the difference between the existing award and the new award is greater than 15%, an upward adjustment to the existing award is indicated.

 

EXAMPLE 2:  If the existing award is $200.00 and the new award is $150.00, subtract $200.00 from $150.00 to obtain -$50.00.  Divide $50.00 by $200.00 to obtain 25%.  Since the difference between the existing award and new award is at least 15%, a downward adjustment to the existing award is indicated.