Preparing For Your Hearing
Note: Oahu hearings are in Room 251 (on the second floor) of the Kakuhihewa Building, 601 Kamokila Blvd., Kapolei
Parties should read thoroughly all documents they receive from the Child Support Enforcement Agency (CSEA) and the Office of Child Support Hearings (OCSH). These documents will explain the action the CSEA is proposing and what laws and/or regulations govern the proposed action.
Parties may also want to review the laws and rules concerning the proposed child support action, the administrative process for child support, and administrative procedure, generally.
ANSWERS TO QUESTIONS ASKED BY FAMILY LAW SECTION LAWYERS
These questions and answers, with a few minor changes, were published in the October 2010 issue of the Family Law Section Newsletter. We would like the readers of these questions and answers to consider these general points when reviewing our responses:
a. This process of questions and answers is experimental. We agree wholeheartedly with Judge (now Justice) McKenna when she said “you folks are doing the most important work” of the Bar at the HSBA Convention. We understand that this attempt carries inherent risks of misunderstanding, but we accept those risks because you are doing work that is most important and we rather risk trying something than doing nothing. We are seeking to balance needs for more information with needs for impartiality and fairness. Please bear with us if this initial round is not what you hoped. We are open to responding to additional questions or comments. Your feedback is important to us.
b. As with any tribunal, our task is to weigh the evidence and arguments and make decisions. Reasonable minds may disagree upon seeing and hearing the same evidence.
c. Our answers are not prescriptions (as in a doctor giving a prescription to remedy an ailment) for winning any points you wish to make in our hearings. We seek to clarify the administrative hearings process for practitioners and parties.
d. OCSH is not the CSEA. Many in the general public think we are the same. It’s possible some attorneys think so too. The CSEA is responsible for enforcing child support orders: collections, disbursements and record-keeping. The OCSH is responsible for adjudicating child support disputes. An easy way to remember: CSEA is like the police or prosecutor. OCSH is like a court.
1. How does the OCSH calculate secondary income, like rent? Does it deduct only GET, or does it deduct any other related business expense, such as real property taxes, maintenance fees (for condos, homeowner’s associations), and management fees?
Consider at least the following portions of the 2010 Guidelines (not exclusive of other portions):
a. IV.I.1., pages 22-23 (Gross income “is the total of all incomes of the parent averaged on a monthly basis before taxes, Social Security and other deductions…Gross income includes income from all sources that are regular and consistent…[and] ”); and,
b. III.F., pages 17-21 (Regarding self-employed individuals and deductions).
What evidence do you have to show the income and the deductions? Is the evidence sufficient to meet your burden of proof? While some variations are expected, we hope the outcomes from OCSH hearings are similar to outcomes from Family Court hearings. In the context of this question, we see no difference in “primary” or “secondary” income.
Check out http://www.supportguidelines.com/articles/art200208.html for an article on the deductibility of depreciation expenses. Other helpful child support articles may be found at http://www.supportguidelines.com/articles/archive.html.
2. How does OCSH deal with people who earn cash payments and won’t admit to the actual amount earned?
[Go to the next paragraph if you don’t wish to indulge in a short story.] A park ranger at a national park once kindly and humorously explained to my family and me that feeding the bears was (and still is) against the law. If you feed the bears, you get fined. Period. Apparently, bears can smell food stored in cars with all the windows up, so under no circumstances should food be left in a car. Bears can tear apart locked car doors with little effort… their claws are like automatic openers on a can of beans. He showed photos of car doors torn open by bears. He explained that when the park rangers are called to the scene, they express their sorrow for your loss while giving you a ticket for feeding the bears. They don’t have to see the bears eating your food. The wrecked cars are enough.
Proving cash income can be more difficult than showing a wrecked car. The general rule: the proponent of a fact bears (oops!) the burden of proof. If a party wants to prove there is more income than is being admitted, the party must submit evidence sufficient to carry his or her burden. The task of the hearings officer is to weigh the evidence and arguments submitted by all parties and make a decision. Proof of cash income should be no different in OCSH hearings than it would be in Family Court hearings. Evaluate your evidence. How will you prove income? Do you have enough to meet your burden of proof? The hearings officer will weigh the competing evidence and arguments and make the decision in the case.
3. In drafting child support orders, is it recommended that initial payments be direct payments to allow time for the CSEA to process the order to withhold income for child support? If so, how many initial direct payments should be anticipated in order to avoid payment gaps between direct pay and the start of income withholding?
This question was submitted to a CSEA official for response because it really deals with collection and record-keeping, both CSEA functions. Here’s the response:
“I’m not sure what they are referring to when they use the term, ‘direct payments’.
In any event, the court order should have a specific start date when payment is to be made through CSEA. The attorneys should instruct their client (the payor) to start paying the ordered amount to CSEA themselves if the income withholding has not kicked in by then. They should never instruct their client to make payment directly to the payee unless the order is to be a direct pay order and the provisions of §576D-10(c) through (i) are followed.”
Thank you, CSEA!
4. Do you allow witnesses at the hearing, to testify about someone’s income, such as a custodian of records? If so, would you issue or authorize a Subpoena Duces Tecum for such a witness?
Yes, we allow witnesses to testify in hearings and we issue subpoenas. Subpoena forms are available on our website: see the Forms link on the blue column to the right of this text.
The party requesting the subpoena is responsible for completing the information on the subpoena, serving the subpoena, and for paying all costs associated with the subpoena, such as service, production, and copying.
Many participants provide documents such as pay statements so subpoenas are infrequently requested. Consider whether the subpoenas are worth the likely expenditure of time and costs.
Keep in mind that our process is intended as an expedited process. If your case is so complex that you must conduct extensive, expensive, and time-consuming discovery, your case might not be appropriate for the administrative process.
5. How much discovery do you allow in preparation for a hearing? Interrogatories? Request for Production of Documents?
The administrative process is intended to expedite the issuance of child support orders. Consistent with that intent, discovery for our hearings is limited; we do not have counterpart rules for discovery found in Rules 26 to 34, Hawaiʻi Family Court Rules. Our hearings do not have nearly the same complexity as Family Court hearings on custody, visitation, property and the like, so formal discovery is unnecessary.
The parties and the CSEA usually provide sufficient information at the hearing, though sometimes hearings are continued to obtain further information. What does this mean for the practitioner? You are not likely to see documents in advance of the hearing unless you work with opposing counsel. Still, most cases are resolved at the first hearing.
6. What have you found as the most effective way for someone to prove a parent’s income, especially in paternity cases, where the parents may not know each other well or at all? What about post divorce cases where the parents have been separated for many years?
Of course, we cannot comment on a “most effective way”. It would sound too much like a prescription for winning, which we do not have anyway so any answer we give might ultimately be a disservice to all.
The CSEA may have information on the incomes of the parties. And, the parties often send ahead of time or bring their own pay statements and other proof of income and credits.
Additionally, the parties have an opportunity to speak with each other in an informal setting we call a pre-hearing conference, just prior to the hearing. Alert parties and counsel can make the most of this time by sharing information, building rapport, and reaching an agreement on some, if not all, issues. Skillful communications can crystallize the specific disputed issues and streamline the contested hearing, if one is needed at all.
7. Is the custodial parent notified of all OCSH hearings? If not, why not?
The OCSH conducts hearings for contested cases that come from the CSEA. The CSEA processes two general types of cases: enforcement and administrative process.
Enforcement hearings involve CSEA actions against payors such as tack-on income withholding orders, credit bureau reporting, and tax refund offsets to enforce child support orders. The disputants are the CSEA and the payors, so only the responsible parties are notified for these hearings, not the custodial parents. Substantive changes to the underlying child support orders are not ordered in these hearings.
Administrative process cases involve substantive child support orders: establishments, modifications, arrearages, and terminations. Both parents are served with the notice of hearing. A sample overview of the administrative process is outlined below:
a. A party requests services from the CSEA to modify child support;
b. The CSEA sends requests for income information to the parties;
c. The CSEA (not the OCSH) prepares a proposed administrative order and serves the parties;
d. One of the parties sends a request for hearing to the CSEA;
e. The CSEA schedules a hearing;
f. The OCSH mails the Notice of Hearing to the parties;
g. A hearing is held; and,
h. A final order is filed with the Family Court.
As shown above, the OCSH gets involved in the process when the Notice of Hearing is sent to the parties. The OCSH is not involved in the creation of the proposed administrative order or the service of the proposed administrative order on the parties.
8. Does the ‘respondent’ parent receive the information the parent who requested for CSEA service provides to the CSEA? If not, why not?
We understand this question to ask: “Does the CSEA send to the non-requestor of services copies of the information provided to the CSEA by the requestor of services?” We are answering this question only in the context of our hearings. If the CSEA seeks to introduce exhibits into evidence in our hearings, copies of the exhibits are provided to both parents. The exhibits submitted by the CSEA may include documents provided by the requestor as well as the non-requestor. Do not assume the CSEA will provide the parties with copies of all documents it receives.
We request that sponsors of the exhibits provide copies to the CSEA, the OCSH and the other parent (if the parent’s address is available) at least one week in advance of the hearing. We understand that parties may not always be able to meet this request. If you are not able to meet our request, bring your exhibits to the hearing, along with copies for the CSEA, the hearings officer, and the other parent. Custodial Parent’s exhibits may be marked: Exhibit CP-1, Exhibit CP-2, etc. Responsible Parent’s exhibits may be marked: Exhibit RP-1, RP-2, etc.
9. Does the Hearings Officer know when a custodial parent is receiving public assistance for the child? How would that fact impact on the proceedings?
We are like the Family Courts in that we are adjudicators. Once again, the basic process: the parties and the CSEA present the information to us; we weigh the information and make the decision. The CSEA typically has information on public assistance and the CSEA usually presents that information in our hearings. The CSEA becomes the advocate for the State’s interests.
Example 1: a child starts receiving TANF cash benefits through a custodial parent. The Department of Human Services (DHS) reports this fact to the CSEA. The CSEA then initiates an administrative proceeding against the non-custodial parent and sends a proposed order to establish current support and medical insurance coverage (and sometimes state debt also) to the parties. At the hearing, the CSEA representative submits evidence regarding the welfare assistance.
Example 2: a child starts receiving Quest insurance. The DHS reports this fact to the CSEA. The CSEA initiates an administrative proceeding and sends a proposed order to the parties. At the hearing, the CSEA representative submits evidence regarding the Quest insurance. Counsel should note that Quest is a welfare benefit, so the CSEA will pursue a medical insurance or cash medical order in order to comply with welfare laws.
Example 3: a mother and child start receiving food stamps. Food stamps alone will not trigger an administrative proceeding by the CSEA.
As to how welfare assistance may impact the proceedings, see HRS § 346-37.1. See also, CSEA vs. Doe, 105 Hawai`i 79, 90, 93 P.3d 1186, 1197 (Haw.Int.Ct.App. 2004).
10. How should the Guidelines be applied when there are three children, one of whom (“Kimo”) resides with mom and the other two (“Sarah” and “Carlos”) share equal time with both parents?
Using the Excel calculator:
a. Run the basic guidelines for the three children, click on the box for Dad to pay, and press tab. (Activating this box will give you the per child amount for Kimo);
b. Write down Dad’s per child amount for Kimo. (You will lose this information once you activate the Extensive Time-sharing box in step c. below.)
c. Click on the box for Extensive Time-sharing and press tab to activate the Equal Time-sharing calculation. (The “Summary of Child Support Payments” on the bottom of the worksheet shows the Equal Time-sharing per child amount.)
d. If Father is to pay for Sarah and Carlos under the Equal Time-sharing calculation, add the amounts for Sarah and Carlos to the amount for Kimo. Father pays the total amount.
e. If Mother is to pay for Sarah and Carlos under the Equal Time-sharing calculation, determine whose obligation is greater. The parent with the greater obligation pays the difference between the two.
HEARING PREPARATION RESOURCES
|Hawaiʻi Revised Statutes, Chapter 91||Administrative Procedures (unofficial version)|
|Hawaiʻi Revised Statutes, Sections 571-50 to 571-88||Family Courts (unofficial version)|
|Hawaiʻi Revised Statutes, Chapter 576D||Child Support Enforcement (unofficial version)|
|Hawaiʻi Revised Statutes, Chapter 576E||Administrative Process for Child Support Enforcement (unofficial version)|
|Hawaiʻi Administrative Rules, Title 5, Chapter 34, Practice and Procedure for Administrative Process|
|Hawaiʻi Administrative Rules, Title 5, Chapter 31, Child Support|
|Hawaiʻi Child Support Enforcement Agency|
|Hawaiʻi Child Support Guidelines|
|The Federal Office of Child Support Enforcement|
WHAT TO BRING TO THE HEARING
Documents parties may want to present at the administrative hearing are:
- Prior court or administrative orders
- Current income information
- Evidence that back child support is or is not owed
- Receipts for child care providers
- Statements showing medical insurance premium costs to cover the child, over and above the cost to cover the parent
- Proof of exceptional circumstances as described by the Hawaiʻi Child Support Guidelines
- Proof of full-time enrollment in school if the child is over 18
- Relevant correspondence, letters, or documents received from the CSEA
- Any other documents the party feels is revelant and supports their position
Parties should submit copies of any documents they intend to present at the hearing to the OCSH and the CSEA at least one week prior to the hearing.
Assume that copies of any and all documents you submit to the OCSH and the CSEA for the hearing may be used as exhibits and copies may be provided to the other party. Please do your part in safeguarding personal information from unauthorized disclosure by removing all Social Security numbers, driver’s license numbers, State of Hawaii identification numbers, financial account numbers, credit or debit card numbers, and passwords and access codes that would permit access to an individual’s financial account from any documents submitted to OCSH or CSEA. Bring your originals to the hearings in case questions arise regarding the accuracy or authenticity of your copies.
Documents may be delivered/mailed to CSEA, Attention: APB Hearing Coordinator, 601 Kamokila Blvd., Suite 251, Kapolei, Hawaiʻi, 96707.
Documents may be delivered/mailed to OCSH at 601 Kamokila Blvd., Rm. 436, Kapolei, Hawaiʻi 96707, or by fax to 808-692-7114.