2010 Tennessee Code
Title 36 - Domestic Relations
Chapter 5 - Alimony and Child Support
Part 10 - Appeals
36-5-1002 - Scope of administrative review.

36-5-1002. Scope of administrative review.

(a)  Notwithstanding any other law to the contrary, the scope of administrative review of the orders at the administrative hearing provided by § 36-5-1001 shall be limited to a determination of the correct identity of the person(s) or entity(ies) to whom or to which the administrative action is directed, to whether there is a mistake of fact involving the action, and, is further limited to the following specific issues set forth in the following subsections:

     (1)  An administrative subpoena for records or request for information or records, pursuant to title 36, chapter 5, part 8 shall be modified or overturned by the hearing officer only upon a showing by clear and convincing evidence of arbitrary or capricious action in the issuance of the administrative subpoena or request, or if there is clear and convincing evidence that the best interests of the child or the child's caretaker would be jeopardized by the execution of the administrative subpoena or request, or if there is clear and convincing evidence that compliance with the request or administrative subpoena, would constitute a clear violation of law;

     (2)  Review of administrative orders for parentage tests pursuant to § 36-5-802 shall be limited to a determination of whether the department's order was arbitrary or capricious;

     (3)  Review of administrative orders pursuant to § 36-5-803 to redirect child support is limited to whether the case upon which the redirection order has been issued is a Title IV-D case;

     (4)  Review of administrative orders pursuant to § 36-5-804 to direct additional payments of child support shall be limited to a determination of whether the order is a reasonable amount that would eliminate the arrearage within a reasonable amount of time;

     (5)  Review of income assignment orders pursuant to § 36-5-501 is limited to:

          (A)  For the issuance of the initial order or income assignment:

                (i)  The correct identity of the individual subject to the order; and

                (ii)  A mistake of fact;

          (B)  For the issuance of an income assignment due to a delinquency pursuant to § 36-5-501(b)(1)(B) or (D):

                (i)  The amount of support not paid; or

                (ii)  The timeliness of the support paid;

          (C)  For the addition of an amount ordered pursuant to § 36-5-501(b)(1)(C) to satisfy accumulated arrears, if the court has not already determined the amount of arrears, the reasonableness of the amount ordered paid on the arrears and, in the case of accumulated arrears, the period of time over which support is ordered to be paid;

          (D)  For the addition of an amount ordered pursuant to § 36-5-501(b)(1)(C) for medical support, if the court has not already determined the amount of medical support, the reasonableness of the amount of medical support ordered; and

          (E)  For termination of an income assignment, that the conditions of § 36-5-503 have been met;

     (6)  Review of enrollment of a child for health insurance coverage in employer-based health coverage pursuant to § 36-5-501(a)(3) following issuance of an order to require the noncustodial parent to provide such coverage shall be limited to a mistake of fact;

     (7)  Review of the adjustment of child support orders pursuant to § 36-5-103 shall be limited to a determination of the appropriate application of the methods of adjustment of the order of support pursuant to § 36-5-103 that have been utilized by the department based on the income of the parties and based upon any circumstances which should permit deviation from the amount and that is justified by the application of those methods;

     (8)  (A)  Review of the enforcement by administrative orders of liens for child support pursuant to title 36, chapter 5, part 9 shall be limited to:

                (i)  The correct amount of the obligation;

                (ii)  The extent of the obligor's interest in the assets; and

                (iii)  Whether good cause exists not to seize, sell, distribute or otherwise dispose of all or a part of such assets.

          (B)  Upon review pursuant to the standards of subdivision (8)(A), the hearing officer may direct that there is a mistake as to the identity or interest of the person whose assets have been seized and dismiss the order, or may direct that all or only a portion of the assets be disposed of, or that there be some other order for the disposition of the assets of the obligor in order to satisfy the child support arrearage.

          (C)  The department's hearing officer or the reviewing court may grant any relief of preliminary or temporary nature relative to the obligor's assets as may be appropriate under the circumstances pending the entry of the final order;

     (9)  Review of income tax refund intercepts shall be conducted pursuant to the department's existing rules or as they may be further amended;

     (10)  Review of reports of credit status shall be limited to the extent of the amount of current support and amount of arrears to be reported to the credit bureau;

     (11)  (A)  Administrative review of the distribution of collections shall not be conducted until such time as the party seeking redress has contacted the customer service unit in the department's state office for a conciliation process in which the customer service unit shall have thirty (30) days to resolve the issues. If the issues have not been resolved within thirty (30) days of the initiation of such effort, the customer service unit shall notify the person who sought conciliation and the person shall have the right to seek administrative review pursuant to this part;

          (B)  Review of distribution actions of the department shall be limited to a determination of the adequacy of efforts to resolve the issues pursuant to the provisions of subdivision (11)(A) and the amount of support that is properly credited to the appellant;

     (12)  Review of an administrative order for payment of an overdue child support obligation made pursuant to the provisions of §§ 36-2-322, 36-5-113 and 37-1-151(e) shall be limited to a determination of whether the order is a reasonable amount that would eliminate the arrearage within a reasonable period of time; or, for orders pursuant to §§ 36-2-322, 36-5-113 and 37-1-151(e) that direct the individual to engage in work activities as set forth in § 71-3-154, the appeal shall be limited to a determination of whether there is good cause to excuse the person's participation in those activities. “Good cause” for the work activities determination shall be limited to the availability to the individual of the ordered activities, or the individual's capability to participate in those activities due to disability or other circumstances effectively preventing the individual's participation;

     (13)  The appeal of an order to determine continuing exclusive jurisdiction pursuant to § 36-5-816 shall be limited to the correct application of the procedures for such determination pursuant to parts 20-29 of this chapter; and

     (14)  Review of a civil penalty for failure to comply with the provisions of § 36-5-120 shall be limited to whether there is good cause for failure to comply with the provision of that section.

(b)  The hearing officer may not forgive any support arrearages upon review of any of the department's administrative orders.

(c)  (1)  The record of child or spousal support as certified by the clerk of the court or as shown by the department's child support computer system shall be admissible without further foundation testimony and shall constitute a rebuttable presumption as to the amount of support that is in arrears and that is owed by the obligor in any review pursuant to this part. “Spousal support,” as used in this part, means a legally enforceable obligation assessed against an individual for the support of a spouse or former spouse who is living with a child or children for whom the individual also owes support.

     (2)  If submitted to the opposing party ten (10) days prior to the administrative hearing, the affidavit of a keeper or custodian of any other records, including, but not limited to, the records of any financial institution or the department of human services or any other government or private entity, concerning any matter before the hearing officer shall be admitted by the hearing officer unless an objection thereto is submitted five (5) days prior to the hearing. If an objection is filed and is upheld by the hearing officer, the hearing officer shall continue the case to permit the taking of any further testimony that may be necessary to resolve the issues.

     (3)  In order to expedite the review of these matters, the hearing officer shall have discretion to take testimony of any party or witness by telephone or video or other electronic technology, and documents may, in the hearing officer's discretion, be submitted by facsimile transmission or by any other electronic technology.

[Acts 1997, ch. 551, § 16; 1998, ch. 1098, §§ 41-43; 2000, ch. 922, §§ 26, 27, 40; 2001, ch. 447, §§ 7, 8.]