40-5-414. Hearing. (1) To contest the withholding of income initiated under 40-5-412 because of a delinquency or the modification of an existing order to withhold, an obligor may within 10 days of being served with notice of intent to withhold income under 40-5-413 file with the department a written request for an administrative hearing to be held pursuant to the contested case provisions of Title 2, chapter 4, part 6.
     (2) Venue for the administrative hearing may be in the county where the obligor resides if the obligor resides in this state, the county in which the payor or the payor's agent is located, or the county in which the department or any of its regional offices is located.
     (3) The administrative hearing must be held by teleconferencing methods unless the obligor or the department expressly requests an in-person hearing before the hearings examiner.
     (4) If the obligor requests a hearing within the 10-day period:
     (a) the initiation of delinquency income withholding by the department and the modification of an existing withholding order must be stayed until conclusion of the hearing or the date of the hearing if the obligor fails to appear at the scheduled hearing. However, in a proceeding to initiate income withholding, if the obligor is only contesting an arrearage amount and is not contesting withholding for current support, income withholding for current support is not stayed. In a proceeding to modify an existing order, income withholding under the existing order to withhold is not stayed.
     (b) the department shall, within 45 days of the service of the notice of intent to withhold income, inform the obligor of the hearing results concerning whether income withholding will take place.
     (5) The department shall issue an order to withhold income or a modified order to withhold in accordance with 40-5-415 if:
     (a) the obligor fails to file a written request for hearing with the department within the specified 10-day period;
     (b) the obligor fails to appear at a scheduled hearing;
     (c) the hearings examiner determines from the evidence that the obligor owes unpaid support equal to or in excess of 1 month's support obligation and the amount of arrearages owing is determined and adjudged to be a fixed and certain sum;
     (d) there is an existing order to withhold and if the hearings examiner determines from the evidence that the obligor owes new or additional amounts in arrears; or
     (e) in cases in which income withholding is being initiated at the request of an obligee without regard to whether there is an arrearage, the hearings examiner determines from the evidence that the obligor did not meet the terms of the alternative arrangement.
     (6) For purposes of the hearing process, arrearages of support must be computed on the basis of the amount owed and unpaid on the date on which the obligor was served with the notice of intent to withhold income. When the department is enforcing a current support obligation, payment of the arrearage after service of the notice is not a basis for not initiating income withholding.
     (7) In a case initiated because an arrearage has accrued or because additional income is being withheld to satisfy additional arrearages, the obligor, within 45 days of service of the notice of intent to withhold income, must be informed of the hearing decision on whether income withholding will take place.
     (8) If the obligor fails to request a hearing within 10 days or fails to appear at a scheduled hearing or if the hearings examiner determines that the obligor owes a combination of unpaid support equal to or in excess of 1 month's support obligation or determines that a modification of an existing order is proper, the department shall proceed with the intended action in accordance with 40-5-415.

     History: En. Sec. 7, Ch. 571, L. 1985; amd. Sec. 11, Ch. 702, L. 1989; amd. Sec. 10, Ch. 635, L. 1991; amd. Sec. 12, Ch. 60, L. 1995.