STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY WALTHER,

Petitioner,

vs.

DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT PROGRAM,

Respondent.

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) Case No. 00-4074

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RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings, on February 2, 2001. The hearing was conducted by videoconferencing between Orlando and

Tallahassee, Florida.

APPEARANCES

For Petitioner: No appearance

For Respondent: Albert Thorburn, Esquire

Department of Revenue Post Office Box 8030 4070 Esplanade Way

Tallahassee, Florida 32314-8030 STATEMENT OF THE ISSUES

The issues for determination are: (1) whether Petitioner is delinquent in child support payments; (2) if yes, what is the amount of the delinquent child support; and (3) whether

Respondent is authorized to levy Petitioner’s two bank accounts at the Bank of America and apply the funds to reduce or satisfy Petitioner’s outstanding arrearage for child support.

PRELIMINARY STATEMENT

On or about October 15, 1999, Respondent, the Department of Revenue, Child Support Enforcement Program (Department), sent a Notice of Intent to Levy to Petitioner, Gary Walther (Petitioner). In the notice, the Department advised Petitioner that it intended to levy on Petitioner’s personal property, in the form of liquid assets, in the control of the Bank of America. According to the notice, the proposed action was being taken because of Petitioner’s failure to pay child support in the amount of $10,717.29. Petitioner challenged the Department’s intended action and requested an administrative hearing. On or about September 28, 2000, the Department referred the matter to the Division of Administrative Hearings to conduct the hearing.

Pursuant to Amended Notice of Hearing (Amended Notice) issued on November 15, 2000, the final hearing in this case was initially set for December 15, 2000. The hearing convened at the time and place designated in the Amended Notice but was continued after Petitioner failed to appear, and the undersigned determined that Petitioner likely did not receive the Amended Notice. The Order Continuing Final Hearing was issued on

December 18, 2000. Subsequently, the final hearing was reset for February 2, 2001, pursuant to the Amended Notice of Video Hearing issued on January 16, 2001. The hearing convened as noticed in the Amended Notice of Video Hearing. The Department's counsel and witnesses, and the undersigned were present for the final hearing, but Petitioner did not appear.

At the final hearing, Respondent presented the testimony of two witnesses, Timothy Morris and Alicia Weglinski, employees of the Department. Respondent offered and had eight exhibits received into evidence. No testimony or evidence was presented on behalf of Petitioner.

The proceeding was recorded, but was not transcribed. At the conclusion of the hearing, the time for filing proposed recommended orders was set for ten days after the hearing.

Petitioner did not file a proposed recommended order. Respondent timely filed a Proposed Recommended Order which has been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. On April 11, 1996, a judicial hearing officer in the Circuit Court of the Ninth Judicial Circuit, in and for Orange County, Florida (Orange County Circuit Court), issued a Report and Recommendation of Hearing Officer on Paternity and/or Other Issues (Report). The Report found that Petitioner, Gary Walther (Petitioner), was the natural father of two minor children and

   recommended that he pay $200.00 per month for each child. The Report also recommended that the child support payments commence on May 5, 1996, and that they be made through the Clerk of the Circuit Court.

2. On April 11, 1996, the Orange County Circuit Court issued an Income Deduction Order (Order) in State of Florida, Department of Revenue, on behalf of Theresa Walther v. Gary Walther, Case No. 86-1675. The Order directed any employer or any other person providing or administering income to Petitioner to deduct from such income $400.00 per month for periodic child support and to pay this amount to the Clerk of the Court. According to the Order, the $400.00 "reflects on-going child support of $200.00 per month, per child, for two minor children."

3. On May 15, 2000, a judicial hearing officer issued a Report and Recommendation in Department of Revenue v. Gary Walther, Case No. 86-1675, in the Orange County Circuit Court.

   The Report and Recommendation abated Petitioner’s on-going child support payments as of April 24, 2000; found Petitioner

   $10,468.76 in arrears in child support as of April 24, 2000; and recommended that Petitioner pay an additional payment of $200.00 per month as payment on the arrears. These payments were to be made to the State of Florida, State Disbursement Unit, in Tallahassee, Florida.

4. On May 15, 2000, the Orange County Circuit Court approved, confirmed and adopted as a Final Order the Report and Recommendation described and referred to in paragraph 3 above.

5. On October 13, 1999, the Department sent a Notice to Freeze to the Bank of America in Richmond, Virginia. In the notice, which was sent by certified mail, the Department advised the Bank of America that Petitioner had a past due and/or overdue child-support obligation of $10,717.29 as of October 13, 1999. Moreover, the Department directed the bank not to transfer, dispose of, or return any credits, debts, or other personal property owned by or owed to Petitioner.

6. On October 25, 1999, the Bank of America verified that it held two accounts identified as belonging to Petitioner. The funds in both accounts totaled $2,894.56.

7. On October 15, 1999, the Department sent a Notice of Intent to Levy by certified mail to Petitioner. That notice provided in pertinent part the following:

   You are hereby notified that pursuant to Section 409.25656, Florida Statutes, the Department of Revenue intends to levy on credits, or personal property belonging to the obligor named above [Petitioner], or debts owed to the obligor. The property consists of liquid assets and is in the control of BANK OF AMERICA.

   
   

   This action is taken for nonpayment of child support by the obligor in the amount of

   $10,717.29 as of October 13, 1999.

   You are hereby notified that you may contest the agency’s action to levy on the above referenced property. You may do so by either filing an action in Circuit Court or by requesting an administrative hearing. If you wish to request an administrative hearing, you must file your petition for hearing, in writing, accordance with the Notice of Rights attached to this Notice.

   If you elect to file an action in Circuit Court, your complaint must be filed with the Clerk of Court within twenty-one (21) days of your receipt of this notice. . . .

   
   

   You may NOT request both an administrative hearing and a hearing in circuit court.

   
   

   Attached to the notice was a Notice of Rights form that detailed Petitioner's due process rights as provided for in Section 409.25656, Florida Statutes.

8. The return receipt from the October 15, 1999, Notice of Intent addressed to Petitioner indicated that the Notice was delivered and received by someone at Petitioner’s address of record on or about October 20, 1999.

9. On or about November 3, 1999, Petitioner filed a Petition for Formal Hearing (Petition), which requested a "formal hearing concerning the Notice of Intent to Levy" which he received October 19, 1999. The Petition listed Petitioner’s address as 234 Crabtree Avenue, Orlando, Florida 32835.

10. On or about November 10, 1999, the Department issued and sent a Notice of Extension of Freeze to the Bank of America. The notice advised the bank that Petitioner had "filed an action

    in the circuit court or under Chapter 120, Florida Statutes, to contest the Department of Revenue’s intention to levy upon assets as specified in the Notice of Freeze." The Department further directed the Bank of America not to transfer, dispose, or return any credits, debts or other personal property owned/controlled by Petitioner and in the bank’s possession and control. Finally, the Notice of Extension of Freeze stated that the Notice remained effective "until final resolution of the circuit court or Chapter 120 action, and the Department issued a Notice of Levy or a Notice of Full or Partial Release of Freeze."

11. On November 30, 2000, the Clerk of the Orange County Circuit Court prepared and issued an Arrearage Affidavit in Case No. 86-1675. The affidavit stated that the May 15, 2000, a Final Order issued by the court established that Petitioner's child support arrearage was $10,468.76. However, because of payments made by Petitioner, the affidavit noted that Petitioner's remaining established arrearage, as of the date of the affidavit, was $6,924.01.

12. As of the date of the final hearing, Petitioner's outstanding arrearage for child support was $6,924.01.

13. Notwithstanding his filing a Petition for Formal Hearing, Petitioner failed to appear at the hearing and no evidence was presented on his behalf.

    CONCLUSIONS OF LAW

    
    

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

15. The Department is the state agency responsible for the administration of the Child Support Enforcement Program. Subsection 409.2557(1), Florida Statutes.

16. Subsection 409.2557(2), Florida Statutes, provides in pertinent part the following:

    (2) The department in its capacity as the state Title IV-D agency shall have the authority to take actions necessary to carry out the public policy of ensuring that children are maintained from resources of their parents to the extent possible. The department's authority shall include, but not be limited to, the establishment of paternity or support obligations, as well as the modification, enforcement, and collection of support obligations.

    
    

17. The burden of proof, absent a statutory directive to the contrary, is on the party asserting the affirmative of the issue in the proceeding. Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977). In this proceeding, the Department seeks to levy the overdue child support from Petitioner's bank accounts. Therefore, to prevail in this proceeding, the Department must establish by a preponderance of evidence the

    alleged facts necessary to show that the proposed levy is authorized.

18. Section 409.25656, Florida Statutes, provides in pertinent part the following:

    Garnishment.–

    1. If a person has a child support obligation which is subject to enforcement by the department as the state Title IV-D program, the executive director or his or her designee may give notice of past due and/or overdue support by registered mail to all persons who have in their possession or under their control any credits or personal property, including wages, belonging to the child support obligor, or owing any debts to the child support obligor at the time of receipt by them of such notice. Thereafter, any person who has been notified may not transfer or make any other disposition, up to the amount provided for in the notice, of such credits, other personal property, or debts until the executive director or his or her designee consents to a transfer or disposition, or until 60 days after the receipt of such notice. If the obligor contests the intended levy in the circuit court or under chapter 120, the notice under this section shall remain in effect until final disposition of that circuit court or chapter 120 action. Any financial institution receiving such notice will maintain a right of setoff for any transaction involving a debit card occurring on or before the date of receipt of such notice.

       
       

    2. Each person who is notified under this section must, within 5 days after receipt of the notice, advise the executive director or his or her designee of the credits, other personal property, or debts in their possession, under their control, or owed by them and must advise the executive

       director or designee within 5 days of coming into possession or control of any subsequent credits, personal property, or debts owed during the time prescribed by the notice.

       Any such person coming into possession or control of such subsequent credits, personal property, or debts shall not transfer or dispose of them during the time prescribed by the notice or until the department consents to a transfer.

       
       

    3. During the last 30 days of the 60-day period set forth in subsection (1), the executive director or his or her designee may levy upon such credits, personal property, or debts. The levy must be accomplished by delivery of a notice of levy by registered mail, upon receipt of which the person possessing the credits, other personal property, or debts shall transfer them to the department or pay to the department the amount owed to the obligor.

       
       

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       (7)(a) Levy may be made under subsection

       1. upon credits, other personal property, or debt of any person with respect to any past due or overdue child support obligation only after the executive director or his or her designee has notified such person in writing of the intention to make such levy.

          1. Not less than 30 days before the day of the levy, the notice of intent to levy required under paragraph (a) must be given in person or sent by certified or registered mail to the person's last known address.

          2. The notice required in paragraph (a) must include a brief statement that sets forth:

       1. The provisions of this section relating to levy and sale of property;

       2. The procedures applicable to the levy under this section;

       3. The administrative and judicial appeals available to the obligor with

          respect to such levy and sale, and the procedures relating to such appeals; and

       4. The alternatives, if any, available to the obligor which could prevent levy on the property.

       
       

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       (8) An obligor may contest the notice of intent to levy provided for under subsection

       (7) by filing an action in circuit court. Alternatively, the obligor may file a petition under the applicable provisions of chapter 120. After an action has been initiated under chapter 120 to contest the notice of intent to levy, an action relating to the same levy may not be filed by the obligor in circuit court, and judicial review is exclusively limited to appellate review pursuant to s. 120.68. Also, after an action has been initiated in circuit court, an action may not be brought under chapter 120.

       
       

19. The above-quoted provisions enumerate the prerequisites that must be met prior to the Department's levying upon a person's credits, personal property, or debts. First, the Department must determine that the person has a child- support obligation which is subject to enforcement by the Department. If the Department establishes that the person has a past due or overdue child-support obligation that is subject to enforcement by the Department, it must next be demonstrated that there has been compliance with the notice requirements enumerated in Section 409.25656, Florida Statutes.

20. Prior to levying upon the credits, personal property, or debts of any child-support obligor, the Department is

    required to give notice by registered mail to all persons known to have in their possession or under their control any credits or personal property belonging to the obligor or owing any debts to that obligor of its intent to levy. The notice should direct such person not to transfer or dispose of the credits, personal property, or debts until the Department consents to a transfer or disposition or until 60 days after receipt of the notice.

    Subsection 409.25656(1), Florida Statutes. Next, persons who receive the foregoing notice are required to advise the Department of credits or other personal property owned by the obligor, or debts owed by them to the obligor, that are in their possession or under their control. Subsection 409.25656(2), Florida Statutes. Finally, prior to the Department's levying upon credits, other personal property, or debts of a child- support obligor, it must provide notice to the obligor that comports with the requirements of Subsection 409.25656(7), Florida Statutes.

21. The evidence established that Petitioner had a past due or overdue child-support obligation that was subject to enforcement by the Department. Further, it was undisputed that Petitioner's past due or overdue child-support obligation, as of November 30, 2000, was $6,924.01.

22. The evidence established that the Department gave the statutorily mandated notice to the financial institution, Bank

    of America, that had personal property owned by Petitioner in its possession and under its control. Additionally, the undisputed evidence showed that at the time the Bank of America received the Notice of Freeze, it had in its possession and under its control, personal property owned or controlled by Petitioner. This personal property was in the form of liquid assets, specifically, funds in two accounts totaling $2,894.56.

23. Finally, the evidence established that the Department issued to Petitioner a Notice of Intent to Levy which (1) notified Petitioner that the Department intended to levy upon his personal property, liquid assets, in the control of the Bank of America; (2) stated that the action was being taken for Petitioner's nonpayment of child support; and (3) advised Petitioner of his due process rights. This notice provided to Petitioner by the Department fully complied with the requirements of Subsection 409.25656 (7), Florida Statutes.

24. In light of the foregoing conclusions, the Department has met its burden of proof in this proceeding. Therefore, the Department is authorized to levy on Petitioner's two aforementioned bank accounts totaling $2,894.56, and to apply those funds to his accrued child support arrearage.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Revenue enter a final order that (1) levies the $2,894.56 in the Petitioner's two bank accounts at the Bank of America; (2) applies the funds to reduce Petitioner's accrued child support arrearage of $6,924.01; and

(3) credits Petitioner for said payment.

DONE AND ENTERED this 6th day of March, 2001, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2001.

COPIES FURNISHED:

Albert Thorburn, Esquire Florida Department of Revenue Post Office Box 8030

4070 Esplanade Way

Tallahassee, Florida 32314-8030

Gary Walther

5965 Spring Street

Austell, Georgia 30168-4041

James Zingale, Executive Director Department of Revenue

5050 West Tennessee Street

104 Carlton Building Tallahassee, Florida 32399-0100

Linda Lettera, General Counsel Department of Revenue

204 Carlton Building Post Office Box 6668

Tallahassee, Florida 32314-6668

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 00-004074

Orders for Case No: 00-004074