Section 19-11-37. Challenges to levy; mistakes; procedures; reimbursement

   (a) Challenges to the administrative levy for child support arrearage may be initiated only by an obligor or by an account holder of interest. Actions initiated by the IV-D agency pursuant to Code Sections 19-11-32 through 19-11-36, this Code section, and Code Sections 19-11-38 and 19-11-39 are not subject to Chapter 13 of Title 50, the "Georgia Administrative Procedure Act," and the only hearing following notice to the financial institution directing the levy shall be in superior court pursuant to this Code section.

(b) If a person decides to challenge the action taken by the IV-D agency, he or she must submit a written challenge within ten working days of the date of the notice, and the challenge must be directed to the person identified in the notice as the contact with the IV-D agency.

(c) The IV-D agency shall, upon receipt of a written challenge, review the facts of the case with the challenging party. Only a mistake of fact, including but not limited to a mistake in the identity of the obligor or ownership of funds or a mistake in the amount of delinquent support due, shall be considered as a reason to dismiss or modify the proceeding. A rebuttable presumption shall exist in a joint account that the funds belong to the obligor, which presumption may only be rebutted by clear and convincing evidence.

(d) If the IV-D agency determines that a mistake of fact has occurred, the agency shall proceed as follows:

   (1) If a mistake in identity has occurred or the obligor is not delinquent in an amount equal to the payment for one month, the IV-D agency shall notify the financial institution that the administrative levy has been released. The IV-D agency shall provide a copy of the notice to the support obligor by regular mail; or

   (2) If the obligor is delinquent but the amount of the delinquency is less than the amount indicated in the notice, the IV-D agency shall notify the financial institution of the revised amount with a copy to the obligor by regular mail. Upon written receipt of instructions from the IV-D agency, the financial institution shall release the funds in excess of the revised amount to the obligor and the moneys in the amount of the debt shall be processed according to Code Section 19-11-38.

(e) If the IV-D agency finds no mistake of fact, the IV-D agency shall so notify the challenging party by regular mail. Upon a subsequent written request of the challenging party, the IV-D agency shall request a hearing before the superior court in the county in which the underlying support order is filed.

(f) Once such a hearing has been requested, the IV-D agency shall proceed as follows:

   (1) Require the financial institution to encumber moneys; and

   (2) Request that the clerk of the superior court schedule a hearing for a time not later than 30 calendar days after the filing of the request for hearing. The time for hearing shall not be extended unless good cause for a later date is found by the court, in which event the time for a hearing may be extended for up to 30 days. The clerk shall mail copies of the request for hearing and the order scheduling the hearing to the IV-D agency and to all account holders of interest.

(g) Once such a hearing has concluded, the IV-D agency shall proceed as follows:

   (1) If the superior court finds that there is a mistake of identity or that the obligor does not owe the delinquent support, the IV-D agency shall notify the financial institution that the administrative levy has been released;

   (2) If the superior court finds that the obligor has an interest in the account and the amount of support due was incorrectly overstated, the IV-D agency shall notify the financial institution to release the excess moneys to the obligor and remit the remaining moneys in the amount of the debt to the IV-D agency for disbursement to the appropriate recipient; or

   (3) If the superior court finds that the obligor has an interest in the account and the amount of support due is correct, the financial institution shall forward the moneys to the IV-D agency for disbursement to the appropriate recipient.

(h) If the obligor or any other party known to have an interest in the account fails to appear at the hearing, the court may find the challenging party in default, shall ratify the administrative levy, if valid upon its face, and shall enter an order directing the financial institution to release the moneys to the IV-D agency.

(i) Issues related to visitation, custody, or other provisions not related to levies against accounts are not grounds for a hearing under this Code section.

(j) Support orders shall not be modified pursuant to this Code section, and any findings in the challenge of an administrative levy related to the amount of the accruing or accrued support obligation do not modify the underlying support order.

(k) An order entered under this Code section for a levy against an account of a support obligor has priority over a levy for a purpose other than the support of the dependents in the order being enforced.

(l) The support obligor may withdraw the request for challenge by submitting a written withdrawal to the person identified as the contact for the IV-D agency in the notice, or the IV-D agency may withdraw the administrative levy at any time prior to the court hearing and provide notice of the withdrawal to the obligor and any account holder of interest and to the financial institution by regular mail.

(m) If the financial institution has forwarded moneys to the IV-D agency and has deducted a fee from the moneys of the account, or if any additional fees or costs are levied against the account, and all funds are subsequently refunded to the account due to a mistake of fact or ruling of the court, the IV-D agency shall reimburse the account for any fees assessed by the financial institution. If the mistake of fact is a mistake in the amount of support payments, however, the IV-D agency is not required to reimburse the account for any fees or costs levied against the account. Additionally, for the purposes of reimbursement to the account for any fees or costs, each certificate of deposit is considered a separate account.

Code 1981, § 19-11-37, enacted by Ga. L. 1997, p. 1613, § 31.