STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLES D. YOUMANS, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2365

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Jacksonville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on May 28, 1988. The parties were represented as follows:

For Petitioner: Charles D. Youmans, pro se For Respondent: Warren J. Schulman

SCHULMAN, HOWARD & HEMPHILL, P.A.

331 East Union Street, Suite 1 Jacksonville, Florida 32202

Petitioner, Department of Health and Rehabilitative Services, called the Respondent and JoAnn Spivey and introduced three exhibits. Respondent testified in his own behalf.

Petitioner filed his proposed recommended order in the form of a letter on July 11, 1988. Respondent did not submit a proposed recommended order.

Petitioner's factual statements in his letter have been considered and utilized in the preparation of this Recommended Order except where such statements were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on Petitioner's proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In 1968, Petitioner's marriage to Judith Marie Youmans was dissolved by the Circuit Court in Duval County, Jacksonville, Florida. One child, D. R. Y. was born of the marriage. Custody of D. R. Y. was given to Petitioner's ex- wife. However, except for a few months, D. R. Y. was in the actual custody of her father until she reached the age of majority in 1982. Petitioner's ex-wife never paid any child support to Respondent for his custody of D. R. Y. Petitioner never had the final divorce decree modified to reflect D. R. Y.'s custody arrangement or to seek an award of child support for his custody of D.

   R. Y. The Department of Health and Rehabilitative Services is not seeking child support enforcement in reference to D. R. Y.

2. From 1968 until about 1977, Petitioner maintained an on again-off again relationship with his ex-wife. They never remarried. However, by 1977, Petitioner had fathered two children with his ex-wife, who are the subject of this action. C. D. Y., Jr., was born July 29, 1971, and M. S. Y. was born August 15, 1973.

   
   

3. In 1977, Petitioner's ex-wife filed a paternity action against Petitioner alleging that the two boys were his children. Petitioner made an appearance in the paternity action and reached an agreement with his ex-wife regarding the paternity of the two boys and how much child support he would pay until they reached the age of majority. A final judgment incorporating the agreement between the parties was entered by the Circuit Court in Duval County, Jacksonville, Florida, on January 28, 1977.

   
   

4. Petitioner states that he was never served with the 1977 paternity suit papers or the final judgment entered in the action. Petitioner testified that he was not aware that a final judgment had been entered awarding his ex-wife

   $15.00 per week per child until a few months before HRS became involved in the tax intercept under consideration here. However, Petitioner made two of the agreed to child support payments in February, 1977, after his attorney had advised him to do so. After the first two payments, Petitioner ceased making the $15.00 per child per week payments and has not made any child support payments to his ex-wife or to the Clerk's Office since February 4, 1977.

   Petitioner has, therefore, accumulated an alleged arrearage of child support for

   C. D. Y. and M. S. Y. in the amount of $16,35.00 through July 1987.

   
   

5. Prior to HRS's involvement in the case in 1986, Petitioner's ex-wife neither asked for nor received any child support from Petitioner, except for the few payments made in 1977. She did not try to enforce the paternity settlement agreement until September 12, 1986, when she asked for HRS's help. Apparently, the reason she went to HRS was to attempt to collect the child support. She has not received any "public assistance" such as AFDC money from HRS and apparently is not asking for such aid.

   
   

6. HRS has not obtained a court order finding Petitioner to be delinquent and no such order has been previously entered. Petitioner has, therefore, never been afforded an opportunity to raise his defenses to any alleged arrearage or non payment of support before the circuit court.

   
   

7. Petitioner felt very strongly that he should not have to pay child support since his ex-wife did not perform her part of the agreement regarding her visitation. He testified that he attempted to visit the two boys on several occasions, but was usually frustrated in his attempts. The last time he attempted to visit the two boys was several years ago when he was met at the door by his ex-father-in-law who was pointing a shot gun at Petitioner and told him to leave. After the shot gun incident, Petitioner did not feel it to be in his best interest to attempt to see the boys anymore. Petitioner also maintained that he should not have to pay child support because she would not raise the boys correctly throughout the time period involved in this case. In essence, he left her because she would not give up certain drugs and he did not want to be living in such an environment nor did he want his boys to be living in such an environment. However, his ex-wife felt otherwise and didn't mind her children being raised around drugs. Petitioner felt that his ex-wife's involvement of HRS to collect child support was simply a tactic on her part to harass him and otherwise be mean. Petitioner also felt that he should have been paid child support for his custody of D. R. Y. who had refused to live with her mother. Petitioner felt that he should at least receive recognition of the fact

   that he did not receive any such support and be credited with the amount he should have been paid, i.e. $15.00 per week.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding.

   
   

9. The manner in which the tax refund intercept program usually operates is described in Presley v. Regan, 604 F.Supp. 609 (N.D.N.Y. 1985), and Smith v. Onondaga County Support Collection Unit, 619 F.Supp. 825 (N.D.N.Y. 1985). In the state of Florida, the Department of Health and Rehabilitative Services has been designated as the state agency responsible for the child support enforcement program, including the tax refund intercept aspects of the program. See Section 409.2557, Florida Statutes.

   
   

10. 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). However, 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, the custodial parent must assign any right, title and interest in the child support arrearage to HRS, including the right to enforce the payment of such child support arrearage by legal process. Section 409.256(2)(c), Florida Statutes, (1987).

    
    

11. Title 42 USCS Sec. 664 is the federal statute providing for the collection of past-due support from federal tax refunds. With an exception not relevant here, subsection (c)(1) of Section 664 defines the term "past-due support" as follows:

    
    

    [T]he term "past-due support" means the amount of a delinquency, determined under a court order, or an order of an administrative process established under State law, for support and maintenance of a child, or of a child and the parent with whom the child is living.

    
    

12. Regulations implementing the foregoing statutory provision are found at 45 CFR 303.72. Section (a) of that regulation provides that "Past-due support, as defined in Section 301.1 of this chapter, qualifies for offset..." The definitions in Section 301.1 include the following:

    
    

    "Past-due support" means amount of support determined under a court order or an order of an administrative process established under State law for support and maintenance of a child or of a child and the parent with whom the child is living, which has not been paid. For purposes of referral for Federal income tax refund offset of support due an individual who has applied for services under Section 302.33 of this chapter,

    "past-due support" is limited to support owed to or on behalf of a minor child.

    
    

13. Implicit in the statutory definition of "past-due support" is the notion that the parent/taxpayer whose tax refund is sought to be intercepted is delinquent in making some court-ordered payment for support and maintenance of a child. In this case, there is no initial court order finding Petitioner delinquent in his child support payments. An action for support is a chancery action. See Chapter 61, Florida Statutes. Only the circuit court has chancery jurisdiction and only the circuit court can determine whether Petitioner is delinquent once he presents his defenses in a support action. See Chapter 61, Florida Statutes. The Division of Administrative Hearings does not have jurisdiction to decide chancery matters. This is especially true since Petitioner has never had the opportunity to raise his defenses.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED:

That the Department of Health and Rehabilitative Services enter a Final Order in this case to the effect that the Department is not entitled to intercept Charles D. Youmans' federal tax refund unless and until Youmans is adjudicated delinquent by a circuit court in the periodic court ordered payment, and to the further effect that any federal tax refund which may already have been intercepted shall be returned to Youmans.

DONE and ENTERED this 29th day of August, 1988, in Tallahassee, Florida.

DIANE CLEAVINGER

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 29th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2365

1. Petitioner's factual allegations contained in paragraph 1 of his letter are immaterial.

2. Petitioner factual allegations contained in paragraph 2 are irrelevant.

3. The factual allegation in the 1st sentence of paragraph 3 was not shown by the evidence. The rest of paragraph 3 is adopted.

4. Paragraph 4, 5 and 7 are subordinate.

5. Paragraph 6 is not shown by the evidence.

6. Paragraph 8 discusses evidence not presented at the final hearing and is inadmissible.

7. Paragraph 9 is irrelevant.

COPIES FURNISHED:

Charles D. Youmans, pro se Route 5, Box 44

Brunswick, Georgia 31520

Warren J. Schulman

SCHULMAN, HOWARD & HEMPHILL, P.A.

331 East Union Street, Suite 1 Jacksonville, Florida 32202

Sam Power, HRS Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Tom Batchelor Staff Attorney

House HRS Committee The Capitol

Tallahassee, Florida 32399-1300

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

CHARLES D. YOUMANS,

Petitioner, CASE NO.: 88-2365

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before one for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order, except where inconsistent with the following:

The Hearing Officer found that petitioner was obligated to pay child support by a final judgment of the Circuit Court in Duval County. The judgment was entered on January 28, 1977, and since that time petitioner has made only two of the weekly payments; yet, the Hearing Officer was unwilling to find petitioner delinquent in his support obligation because of petitioner's complaints about his ex-wife's denial of visitation, drug use, and other matters concerning the children.

Petitioner's complaints about his ex-wife and the rearing of the children might constitute grounds for modification of the support judgment, but it is petitioner's responsibility to seek a modification in Circuit Court. Section 61.13(1)(a), Florida Statutes.

Until and unless the support judgment is modified, petitioner is obligated to pay support as ordered, and the amount of the unpaid, or delinquent support may be determined in an administrative proceeding under Section 120.57, Florida Statutes. It is well established that the right of a custodial parent to payment of child support in arrears is vested. Guarino vs. Guarino, 421 So.2d

189 (Fla. 2nd DCA 1983). The administrative Hearing Officer has no authority to modify the support order, but does have the authority to determine the amount of unpaid support under the support order. Thus, petitioner is delinquent in the amount of $16,350.00 as of July, 1987.

Based upon the foregoing, it is

ADJUDGED, that a federal income tax refund intercept against petitioner, Charles D. Youmans, be approved.

DONE and ORDERED this 14th day of November, 1988, in Tallahassee, Florida.

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services

by Deputy Secretary for Operations

COPIES FURNISHED TO:

CHARLES D. YOUMANS, PRO SE ROUTE 5 BOX 44

BRUNSWICK, GA 31520

WARREN J. SCHULMAN, ESQUIRE

321 EAST UNION STREET SUITE 1

JACKSONVILLE, FLORIDA 32202

DIANE CLEAVINGER HEARING OFFICER

DIVISION OF ADMINISTRATIVE HEARINGS THE OAKLAND BUILDING

2009 APALACHEE PARKWAY

TALLAHASSEE, FLORIDA 32399-1550

TOM BATCHELOR STAFF ATTORNEY

HOUSE HRS COMMITTEE THE CAPITOL

TALLAHASSEE, FLORIDA 32399-1300 CHRISS WALKER (OPCSEL)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 16th day of November, 1988.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

11/4/88

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-002365

Orders for Case No: 88-002365