Montana Code 40-5-277. Administrative review hearing — final order — court approval of order
40-5-277. Administrative review hearing — final order — court approval of order. (1) Upon receipt of a timely request for hearing from a party, the department shall schedule an administrative hearing. The hearing is a contested case as defined in 2-4-102 and must initially be conducted by teleconferencing methods. At the request of a party or upon a showing that the party’s case was substantially prejudiced by the lack of an in-person hearing, the department shall grant a de novo in-person hearing. The hearing is subject to Title 2, chapter 4, and 40-5-253, except as otherwise provided in 40-5-272, 40-5-273, 40-5-277, and 40-5-278.
Terms Used In Montana Code 40-5-277
- Child: means :
(i)a person under 18 years of age who is not otherwise emancipated, self-supporting, married, or a member of the armed forces of the United States;
(ii)a person under 19 years of age and still in high school;
(iii)a person who is mentally or physically incapacitated if the incapacity began prior to the person's 18th birthday; or
(iv)in a IV-D case, a person for whom:
(A)support rights are assigned under 53-2-613;
(B)a public assistance payment has been made;
(C)the department is providing support enforcement services under 40-5-203; or
(D)the department has received a referral for IV-D services from an agency of another state or an Indian tribe under the provisions of the Uniform Interstate Family Support Act, the Revised Uniform Reciprocal Enforcement of Support Act, the Uniform Reciprocal Enforcement of Support Act, or Title IV-D of the Social Security Act. See Montana Code 40-5-201
- Department: means the department of public health and human services. See Montana Code 40-5-201
- Equitable: Pertaining to civil suits in "equity" rather than in "law." In English legal history, the courts of "law" could order the payment of damages and could afford no other remedy. See damages. A separate court of "equity" could order someone to do something or to cease to do something. See, e.g., injunction. In American jurisprudence, the federal courts have both legal and equitable power, but the distinction is still an important one. For example, a trial by jury is normally available in "law" cases but not in "equity" cases. Source: U.S. Courts
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Guidelines: means the child support guidelines adopted pursuant to 40-5-209. See Montana Code 40-5-201
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Obligation: An order placed, contract awarded, service received, or similar transaction during a given period that will require payments during the same or a future period.
- Obligor: means a person, including an alleged father, who owes a duty of support. See Montana Code 40-5-201
- Parent: means the natural or adoptive parent of a child. See Montana Code 40-5-201
- Remand: When an appellate court sends a case back to a lower court for further proceedings.
- State: when applied to the different parts of the United States, includes the District of Columbia and the territories. See Montana Code 1-1-201
- support obligation: means the amount created by:
(a)the failure to provide for the medical, health, and support needs of a child under the laws of this or any other state or under a support order;
(b)a support order for spousal maintenance of the custodial parent; or
(c)fines, fees, penalties, interest, and other funds and costs that the department is authorized under this chapter to collect by the use of any procedure available for the payment, enforcement, and collection of child support or spousal maintenance or support. See Montana Code 40-5-201
- Support order: means an order, whether temporary or final, that:
(a)provides for the payment of a specific amount of money, expressed in periodic increments or as a lump-sum amount, for the support of the child, including an amount expressed in dollars for medical and health needs, child care, education, recreation, clothing, transportation, and other related expenses and costs specific to the needs of the child;
(b)is issued by:
(i)a district court of this state;
(ii)a court of appropriate jurisdiction of another state, Indian tribe, or foreign country;
(iii)an administrative agency pursuant to proceedings under this part; or
(iv)an administrative agency of another state, Indian tribe, or foreign country with a hearing function and process similar to those of the department under this part; and
(c)when the context requires, includes:
(i)judgments and orders providing periodic payments for the maintenance or support of the custodial parent of a child receiving services under this chapter; and
(ii)amounts for the recovery of fines, fees, penalties, interest, and other funds and costs that the department is authorized under this chapter to collect by the use of any procedure available for the payment, enforcement, and collection of child support or spousal maintenance or support. See Montana Code 40-5-201
- Venue: The geographical location in which a case is tried.
(2)In addition to the powers and duties provided by other law, to ensure the equitable determination of a support obligation, during a review hearing the department shall:
(a)question witnesses in a nonadversarial manner to elicit full disclosure of all pertinent facts in dispute;
(b)hear evidence submitted by the parties and rule on its admissibility; and
(c)apply the guidelines to the facts agreed upon and to those determined at the hearing on disputed matters.
(3)The hearings officer shall determine the liability and responsibility, if any, of the parent or parents under the notice. The monthly support obligation must be determined with reference to the child support guidelines adopted by the department under 40-5-209. The hearings officer is not limited to the amounts stated in the notice. The guidelines must be used in all cases, including cases in which the order is entered upon the default of a party and those in which the order is entered upon the parties’ consent. A verified representation of a defaulting parent’s income and financial condition, based on the best information available, may be used when a parent fails to provide financial information for use in applying the guidelines. The amount determined under the guidelines is presumed to be an adequate and reasonable award unless the hearings officer finds by clear and convincing evidence that the application of the guidelines is unjust to the child or to any of the parties or is inappropriate in a particular case. If the hearings officer finds that the guideline amount is unjust or inappropriate in a particular case, the hearings officer shall state the reasons for finding that the application is unjust or inappropriate. Similar findings must also be made in a case in which the parties have agreed to a support amount that varies from the guideline amount. Findings that rebut and vary the guideline amount must include a statement of the amount of support that would have ordinarily been ordered under the guidelines.
(4)If the department determines that the difference between the existing support order and the amount determined under the guidelines is negligible under rules issued by the department, the modified support order may not change the amount of the support obligation. Regardless of the amount of the support order, the department may determine that an order for the provision of health insurance is appropriate.
(5)The department shall consider whether or not health insurance for the child is available and make an appropriate order in accordance with part 8 of this chapter for the provision of the child’s health insurance.
(6)In addition to complying with other requirements of law, the modified support order must include the following notices and warnings:
(a)that the parties keep the department informed of the name and address of the obligor‘s current employer and information on health insurance available to the parties through employment or other group insurance; and
(b)that the modified order is subject to future administrative review and modification by the department upon the request of the department or a party under this part when the department is providing services under Title IV-D of the Social Security Act.
(7)Except as provided in subsection (8), an order entered under this section:
(a)is a final agency decision and is subject to judicial review pursuant to the Montana Administrative Procedure Act; and
(b)must notify the parties that the order is subject to judicial review under Title 2, chapter 4, part 7, and 40-5-253.
(8)(a) An administrative modified support order issued under this section that modifies a support order entered by a Montana court or a court of another jurisdiction is not effective as a final order until the modified order is filed with and approved by the court that entered the order if that order was entered by a Montana district court. If the order was entered by a court of another jurisdiction, the order must be filed with and approved by a Montana district court that is an appropriate court under the Montana laws or rules of court governing jurisdiction and venue in civil proceedings. The department shall file the proposed modified order with the appropriate court under the Montana laws or rules of court governing jurisdiction and venue in civil proceedings and shall serve the order on the parties and their counsel of record in the administrative and court proceedings by mail or personal service in accordance with Rule 5 of the Montana Rules of Civil Procedure. Service is complete upon mailing to the last-known address of the parties and counsel of record.
(b)A party may file a written objection to an administrative modified support order proposed by the department under this section with the court within 20 days after service of a copy of the order on the party. The court shall set a date for a hearing on the objection to the proposed order. If an objection is not filed, the court may without further notice enter its order.
(c)The court may adopt an administrative modified support order proposed under this section, modify it, reject it, or remand it to the department with instructions for further hearing. Service of the court order must be in accordance with Rule 5 of the Montana Rules of Civil Procedure. If the court modifies a proposed administrative modified support order proposed under this section without a hearing, a party may file an objection to the court’s modification within 10 days of service of the court’s order on the party. If an objection is filed, the court shall set a date for hearing the objection and shall enter its final order after the hearing.