STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY ALAN MITCHELL, )

)

Petitioner, )

)

vs. ) CASE NO. 87-2566

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

On April 6, 1988, a public hearing was held in this cause, by William R. Cave, a duly designated hearing officer of the Division of Administrative Hearings in Jacksonville, Florida. The issue for determination is whether the Respondent, Department of Health and Rehabilitative Services, acted properly in intercepting Petitioner's Internal Revenue Service income tax refund to partially satisfy an arrearage of child support owed to the State of Florida.

There was no appearance by or for the Petitioner.

The Respondent was represented by: R. Craig Hemphill, 331 East Union Street, Suite 1, Jacksonville, Florida 32202.

BACKGROUND

This is a case in which the Respondent instituted a proceeding for the collection through Federal Tax Refund Offset of a sum of money determined to be owed by Petitioner to the State of Florida by judgment of the Circuit Court of Duval County, Florida. Petitioner contests the interception of his federal income tax refund, primarily on the grounds that a portion of the refund belongs to his present wife for wages earned by her and not subject to intercept by the Respondent.

This matter was originally scheduled for hearing on August 10, 1987, but was continued to allow Petitioner time to establish the portion of the income tax refund belonging to his present wife and not subject to intercept. The continuance was conditioned upon the Petitioner filing a Form 1040X with IRS to verify the amount of the refund belonging to his present wife, and advising the undersigned by October 15, 1987. Petitioner failed to respond timely and on January 8, 1988, this matter was rescheduled to be heard on April 6, 1988.

In support of the intercept, Respondent presented exhibits 1, 2 and 3 which were received into evidence.

Respondent waived its right to present Proposed Findings of Fact and Conclusions of Law.

FINDINGS OF FACT

1. On September 16, 1981, the Circuit Court, Fourth Judicial Circuit, In And For Duval County, Florida, upon a Petition For Modification of the Final Judgment of Paternity, entered a Consent Order For Support requiring the Petitioner in this cause to pay Fifteen and No/100 Dollars ($15.00) per week as and for child support and assigning said support payments to the Respondent in this cause until such time as the child involved in the paternity suit no longer received assistance from the State of Florida.

   
   

2. At the time Respondent caused Petitioner's Federal Income Tax Refund to be intercepted, the Petitioner was in arrears in the sum of Two Thousand Seven Hundred Ninety and 17/100 Dollars ($2,790.17) on child support payments assigned to the Respondent under the order referred to in paragraph 1 above.

   
   

3. Petitioner's Federal Income Tax Refund in the amount of Eight Hundred Twenty Eight and No/100 Dollars ($828.00) has been intercepted and is in the possession of the Respondent.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes.

   
   

5. The right of a custodial parent to the payment of child support arrearage is a vested right and the custodial parent is entitled to enforcement of the payment of child support arrearage by legal process. Guarino v. Guarino,

   431 So.2d 189, (2 DCA Fla. 1983). And where it becomes necessary for the custodial parent to seek "public assistance" through the Department of Health and Rehabilitative Services under Section 409.2561, Florida Statutes because the noncustodial parent has failed to pay child support, the custodial parent as a recipient of the "public assistance" must assign any right, title and interest in the child support arrearage, including the right to enforce the payment of such child support arrearage by legal process. Section 409.256(2)(c), Florida Statutes (1987).

   
   

6. The Petitioner's wife is entitled under the Federal Tax Refund Offset to have the portion of the tax refund that relates to her wages excluded from intercept. However, the Petitioner failed to appear and present any evidence to show what portion of the refund belonged to his present wife for taxes on her wages.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conclusions of Law, it is, therefore,

RECOMMENDED that Respondent, Department of Health and Rehabilitative Services, enter a Final Order providing for the Petitioner's income tax refund in the amount of Eight Hundred Twenty Eight and No/100 Dollars ($828.00) be applied against his debt to the State of Florida for past due child support.

Respectfully submitted and entered this 22nd day of April, 1988, in Tallahassee, Florida, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1988.

COPIES FURNISHED:

Gregory Alan Mitchell

439 Woodbine Street Jacksonville, Florida 32206

R. Craig Hemphill, P.A.

331 East Union Street, Suite 1 Jacksonville, Florida 32202

Frederick J. Simpson, Esquire Dept. of HRS

Post Office Box 2417 Jacksonville, Florida 32231

Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-002566

Orders for Case No: 87-002566