40-5-414. Hearing. (1) (a) To contest the withholding of income initiated 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 income withholding 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.

(b) The obligor shall include with the hearing request a statement of one or more of the grounds for contesting income withholding provided in 40-5-412. If the hearing request fails to include that statement, the hearings officer may deny the hearing for failure to state an issue upon which a hearing may be granted.

(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 hearing must initially be held by teleconferencing methods and is subject to the Montana Administrative Procedure Act. At the request of a party, the hearings officer shall grant a de novo in-person hearing.

(4) If the obligor files a timely request for a hearing:

(a) that includes a statement showing a probable mistake of fact, the initiation of delinquency income withholding by the department and the modification of an existing withholding order may be stayed upon written request of the obligor until conclusion of the hearing or the date of the hearing if the obligor fails to appear at the scheduled hearing. However, 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) unless good cause is found, the department shall, within 60 days of receipt of a request for a hearing, conduct a hearing. Unless good cause is found, within 60 days after a hearing is held, any posthearing briefs are received, and all evidence has been provided to the department concerning a notice of intent to withhold income, the department shall inform the obligor whether income withholding must take place.

(5) The department may continue an order to withhold income issued because of a delinquency, may modify an existing order to withhold income, or may issue an order to withhold income if:

(a) the obligor fails to file a timely written request for hearing that includes the statement showing a mistake of fact;

(b) the obligor fails to appear at a scheduled hearing;

(c) the hearings examiner determines from the evidence that the obligor is delinquent in the payment of support;

(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 became delinquent. When income withholding is initiated because of a delinquency, payment of the arrearage after service of the notice or after service of an order to withhold on a payor is not a basis for not initiating or continuing income withholding. Whenever the notice of income withholding is issued because an arrearage has accrued or additional income is being withheld to satisfy additional arrearages, unless good cause is found, within 60 days after a hearing is held, any posthearing briefs are received, and all evidence has been provided, the department shall inform the obligor whether income withholding must take place.

(7) If the obligor fails to request a hearing within 10 days after service of the notice of income withholding or fails to appear at a scheduled hearing or if the hearings examiner determines that the obligor owes unpaid support or determines that a modification of an existing order is proper, the department shall issue an order to withhold income 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; amd. Sec. 13, Ch. 482, L. 1997; amd. Secs. 74, 100, Ch. 552, L. 1997.