40-5-277. Administrative hearing after review -- final order -- court approval of order. (1) Upon receipt of a timely request for hearing from a party to a review session, 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, and 40-5-276 through 40-5-278.
     (2) The administrative hearing following a review session is limited to resolution of contested facts identified by the parties or the department during the review session.
     (3) If additional discovery is requested by a party, the hearings officer may issue subpoenas ordering the department to produce unprotected information and ordering other parties to produce information in their possession about the obligor and the obligee that may be reasonably necessary for application of the guidelines.
     (4) 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.
     (5) On the basis of evidence presented on the contested facts at the administrative hearing and the agreed facts determined in the review session, the department may:
     (a) adopt its own recommendation;
     (b) determine a support obligation in accordance with the guidelines and issue a modifying order; or
     (c) terminate the review.
     (6) 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.
     (7) 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.
     (8) 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 40-5-271 through 40-5-273 and 40-5-276 through 40-5-278 when the department is providing services under Title IV-D of the Social Security Act.
     (9) Except as provided in subsection (10), 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.
     (10) An administrative modified support order issued under 40-5-276 or 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 personally or by certified mail, return receipt requested. Service is complete upon signing of the return receipt. 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. The court may adopt an administrative modified support order proposed under 40-5-276 or 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 40-5-276 or 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.

     History: En. Sec. 6, Ch. 542, L. 2001.