40-5-273. Administrative review of child support orders -- modifying orders. (1) A review application setting forth facts meeting any of the criteria for review of a child support order established in 40-5-272 must be scheduled for an administrative hearing, and a hearings officer must be appointed by the department. Unless the hearings officer determines under rules of the department that an in-person hearing is necessary, the hearing must be conducted by telephone conference. The order scheduling the hearing must be served on the obligor and the obligee at least 60 days before the hearing. The order must include the following information as an exception to 2-4-601:
     (a) the date and time for the hearing and, if appropriate, the place for the hearing;
     (b) a statement of the purpose, objectives, and possible consequences of the review;
     (c) a statement of the right of the obligor and the obligee to request the hearings officer to issue subpoenas compelling the appearance of witnesses and the production of documents for the hearing; and
     (d) a requirement that the obligor and the obligee provide the hearings officer with telephone numbers at which they and their witnesses may be contacted for the hearing.
     (2) The hearings officer may issue an order commanding the obligor or the obligee, or both, to produce financial information. The order must be personally served with the order scheduling the hearing. The hearings officer may also issue subpoenas ordering the department or other parties to produce information in their possession about the obligor and the obligee that may be reasonably necessary for application of the guidelines. Any information so obtained by the hearings officer must be provided to the department and other parties prior to the hearing.
     (3) The requested modification of the order must be determined on the evidence submitted to the hearings officer under the following conditions:
     (a) If an applicant other than the department fails to provide a telephone number for the hearing or fails to be at the number provided when telephoned for the hearing, the failure is considered a withdrawal of the application.
     (b) If a party other than the applicant fails to provide a telephone number for the hearing or fails to be at the number provided when telephoned for the hearing, the failure is considered to mean that the party does not oppose the modification.
     (c) If the department is the applicant and if either the obligor or the obligee, or both, fails to provide a telephone number for the hearing or fails to be at the number provided when telephoned for the hearing, the failure is considered an admission that the party or parties do not oppose the modification.
     (4) An order entered under the circumstances described in subsection (3)(a), (3)(b), or (3)(c) becomes final within 10 days of issuance unless a party provides the hearings officer an affidavit showing good cause for failure to provide a telephone number or failure to be available for the hearing when telephoned.
     (5) A provision of law may not be construed to mean that an obligor or an obligee is a client of the department, and the department is not considered a party to the action.
     (6) (a) In addition to the powers and duties provided by other law, the hearings officer shall, to ensure the equitable determination of a support obligation, during a review hearing:
     (i) question witnesses in a nonadversarial manner to elicit full disclosure of all pertinent facts;
     (ii) introduce evidence on behalf of the parties;
     (iii) apply the guidelines to the facts elicited from the hearing; and
     (iv) inquire as to any circumstances that may require variance from the guidelines.
     (b) If a party is represented by legal counsel, the hearings officer may allow the counsel to present that party's case.
     (7) The hearings officer shall determine a support obligation in accordance with the guidelines and shall issue a modifying order. If the hearings officer 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 modifying order may not change the amount of the support obligation. Even though the review may indicate that a modification of the support obligation is appropriate, the department may not modify the support order if the hearings officer determines, after the review hearing, that to do so would not be in the best interests of the child under the rules issued by the department. An increase in child support is presumed to be in the best interests of the child unless, after a review hearing, either the obligor or the obligee demonstrates it would not be in the best interests of the child. The modifying order must prospectively modify the underlying support order from the date of service of the order scheduling the hearing.
     (8) The hearings officer shall make a written determination whether health insurance is available to the child of the obligor through the obligor's employment or other group insurance. If the hearings officer determines health insurance is available to the child of the obligor, the hearings officer shall issue a modifying order that requires the obligor to obtain and keep health insurance for the child. If the hearings officer determines that health insurance is not available to the child of the obligor, he shall issue a modifying order containing the notices provided in subsection (9). An order to provide health insurance is presumed to be in the best interests of the child unless, after a review hearing, either the obligor or the obligee demonstrates it would not be in the best interests of the child.
     (9) In addition to complying with other requirements of law, the modifying order must include the following notices and warnings:
     (a) that the obligor shall keep the department informed of the name and address of his current employer and information on health insurance available to the obligor through the obligor's employment or other group insurance;
     (b) that the obligor shall obtain and keep health insurance for the child of the obligor whenever it is available through the obligor's employment or other group insurance; and
     (c) that the modifying order is subject to future administrative review and modification by the department upon the request of the department or a party under 40-5-271 through 40-5-273 when the department is providing services under IV-D.
     (10) Orders entered under this section are final agency decisions, subject to judicial review pursuant to the Montana Administrative Procedure Act. All orders entered under this section must notify the parties that the order is subject to judicial review under Title 2, chapter 4, part 7.
     (11) The parties to the support order and the department when it is providing services under IV-D may enforce the support order or modify that order independently, as provided in 40-4-208 and 53-2-613(4)(d).

     History: En. Sec. 3, Ch. 266, L. 1991.