STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2173

)

IRA CLAYTON DANIELS, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing was held pursuant to notice on September 4, 1986 in Jacksonville, Florida by Stephen F. Dean, assigned Hearing Officer of Division of Administrative Hearings. This case arose from a notice to Ira Clayton Daniels by Department of Health and Rehabilitative Services of its intent to intercept Daniels' income tax refund for partial payment of child support payments pursuant to 42 USCS Section 664(a)(1) and 45 CFR Section 303.72.

APPEARANCES

For Petitioner: Warren J. Schulman, Esquire

Assistant General Counsel

Child Support Enforcement Program

105 East Monroe, Suite 101 Jacksonville, Florida 32202

For Respondent: Ira C. Daniels

8904 Greenleaf Road

Jacksonville, Florida 32208

ISSUES

The ultimate issue is whether, the Department of Health and Rehabilitative Services may intercept Daniels' income tax refund. However, this turns on the issue of whether Daniels has been delinquent in excess of 3 months.

Factually, Daniels owed money for aid provided his child. The Department of Health and Rehabilitative Services has obtained a judgement in the amount of

$6,673 upon which Daniels is to make payments of $25/month. Department of Health and Rehabilitative Services argues that Daniels owes and has been delinquent on the $6,673 since the order was entered. Daniels argues that he is not over three months in arrears on his payments of $25/month. The evidence introduced by Department of Health and Rehabilitative Services shows Daniels is in arrears only $27.91 on his payments on the judgement.

The issue is whether Section 45 CFR Section 303.72 requires a delinquency in payments required to be made on the amount of money established in a court order.

FINDINGS OF FACT

1. On October 10, 1981, Carol Renee Neal assigned to the State of Florida her rights to child support for Latoya v. Daniels, acknowledged child of Ira Clayton Daniels.

   
   

2. An Order was entered on January 14, 1985, which established that Ira Clayton Daniels owed the State of Florida $6,673 for a public assistance child support obligation and provided that Ira Clayton Daniels would pay $25/month until the $6,673 was repaid.

   
   

3. The records of the Department, Daniels' Exhibit 1, reflect Daniels has made regular payments on the debt, and at the time of the hearing owed $27.91 arrearage on the debt. Daniels was less than three months in arrears on his payments established by the Order referenced above.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Department of Health and Rehabilitative Service is the state agency which is responsible for the administration of the program of aid to dependent children. Pursuant to 45 CFR 303.72, the Department of Health and Rehabilitative Services may intercept tax refunds to collect amounts due on child support payments.

   
   

5. Section 45 CFR 303.72 sets out the following requirements:

   
   

   1. there must be an assignment of rights, and

   2. the amount owed must be established by a court order, and

   3. the amount must be more than $150, and

   4. the amount must be delinquent in excess of three months.

      
      

6. The facts reveal that the first three criteria are met. This case turns on whether the last requirement is met.

   
   

7. Department of Health and Rehabilitative Services argues it is met because Ira Clayton Daniels owed the money since 1981. Daniels states he is not delinquent because he is current on his payments on the judgement.

   
   

8. Daniels' view is the more persuasive reaching the provisions 45 CFR Section 203.72 pari materia. The "amount delinquent" is clearly intended to be the amount unpaid of the payments established in the order or judgement. There is a delinquency when and only when the judgement debtor fails to make the payments required by judgement.

RECOMMENDATION

Based upon the foregoing, the claim against Ira Clayton Daniels should be dismissed.

DONE AND ORDERED 16th day of September 1986 in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 16th day of September 1986.

COPIES FURNISHED:

Warren J. Schulman, Esquire Assistant General Counsel

Child Support Enforcement Program

105 East Monroe, Suite 101 Jacksonville, Florida 32202

Frederick J. Simpson, Esquire HRS District IV Legal Counsel Post Office Box 2417 Jacksonville, Florida 32231-0083

Ira C. Daniels

8904 Greenleaf Road

Jacksonville, Florida 32208

Docket for Case No: 86-002173

Orders for Case No: 86-002173