STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILSON HUBERT REYNOLDS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1921

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause was scheduled for formal hearing on August 3, 1987 but on July 30, 1987 the parties filed a Joint Motion To Dispose of Cause Without Hearing and as grounds therefor alleged that all facts necessary for the resolution of this matter were contained in the Stipulation attached to the motion. The motion was granted and the parties were given until 5:00 p.m. August 14, 1987 to file their Proposed Findings of Fact and Conclusions of Law.

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 arrearge of child support owed to the State of Florida.

For Petitioner: Marian Alves, Esquire

Legal Services of North Florida, Inc.

400 North Madison Street Quincy, Florida 32351

For Respondent: John R. Perry, Esquire,

Department of Health and Rehabilitative Services

2639 North Monroe Street, Suite 200-A Tallahassee, Florida 32303

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 Washington County, Florida. Petitioner contests the interception of his federal tax refund, primarily on the grounds that he is current in the payment of his debt to the State of Florida and that Respondent is precluded from intercepting his income tax refund unless he is delinquent in his payments as set forth in the Court Order of June 25, 1982.

FINDINGS OF FACT

The following are the facts to which the parties have stipulated:

1. On September 27, 1977, the Circuit Court for the Fourteenth Judicial Circuit of Florida entered an order dissolving the marriage of Petitioner and Debra LaRhea Reynolds and incorporated into that order a stipulation whereby Petitioner agreed to pay child support in the amount of $20.00 per week.

   
   

2. On April 13, 1977, Debra LaRhea Reynolds assigned her rights to child support to the Respondent, Department of Health and Rehabilitative Services.

   
   

3. On June 25, 1982, the Circuit Court for the Fourteenth Judicial Circuit of Florida entered an order holding Petitioner in contempt for failure to pay accrued arrearages of child support in the amount of $4,280.00, to which Respondent was entitled by virtue of the assignment of rights referred to in paragraph 2.

   
   

4. On June 8, 1982, the aforementioned court authorized a payroll deduction of $62.00 by weekly against Petitioner's paycheck. Under the terms of the contempt order, $40.00 of this amount was credited to the arrearage.

   
   

5. As of June 23, 1987, the arrearage had been reduced to $1,960.00.

   
   

6. On July 10, 1986, Respondent caused to be intercepted Petitioner's Federal Income Tax Refund of $1,080.03.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

8. 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 4O9.256(2)(c), Florida Statutes (Supp. 1986).

   
   

9. In the instant case, as assignee of the custodial parent's right to child support arrearage, the Respondent brought contempt proceedings against the Petitioner in the Circuit Court of Washington County, Florida and on June 25, 1982 was granted a judgment of arrearage in the amount of $4,280,00 of which

   $1,960.00 remained unpaid on June 23, 1987. On the strength of this judgment, and as the state agency responsible for the administration of the child support enforcement program in Florida, including the tax refund intercept aspects of the program, the Respondent moved to intercept the Petitioner's income tax refund in the amount of $1,080.03.

   
   

10. Petitioner contends that the Order of June 25, 1982 prescribes the manner in which the Petitioner must pay the adjudged past due child support and

    so long as the Petitioner is not in violation of that order then Respondent is precluded from using any other legal process to collect the adjudged past due child support. However, in furtherance of its legislative intent expressed in Section 409.2551, Florida Statutes that the remedies provided in the child support enforcement program were in addition to, and not in lieu of, existing remedies, the legislature enacted Section 61.17(3), Florida Statutes (Supp.

    1986) which provides in pertinent part:

    
    

    The entry of a judgment of arrearages for child support...does not preclude certification of a IV-D case for intercept, by the United States Internal Revenue Service, for failure of an obligor to pay the child support...for which the judgment was entered. (Emphasis supplied).

    
    

    (5) Section 61.046(5) and (9), Florida Statutes (Supp. 1986) provides as follows:

    
    

11. "IV-D" means services provided pursuant

    to Title IV-D of the Social Security Act. ...

    * * * *

    
    

12. "Obligor" means a person responsible

    for support payments pursuant to an alimony or child support order.

    
    

13. Section 409.2554(10)(a), Florida Statutes (Supp. 1986) defines support as:

    
    

    Support for a child and spouse or former spouse who is living with the child or children, but only if a support obligation has been established for that spouse and the child support obligation is being enforced under Tile IV-D of the Social Security Act.

    
    

14. Since the Order of June 25, 1982 is absent any clear language which prohibits the Respondent from using any other legal process in collecting the judgment of child support arrearages, the language of Section 61.17(3), Florida Statutes (Supp 1986) clearly allows the Respondent to use the tax intercept program to collect child support payments adjudicated in arrears. Cf. Guarino

v. Guarino, 431 So 2d 189 (2 DCA Fla. 1983)(Statement on remand)("[T]he amended order may, however, permit, the husband to pay this amount at the rate of $50 per month and may provide that the wife may not sue on the judgment until further order of the court as long as the husband adheres to the prescribed payment schedule.")

RECOMMENDATION

Having considered the foregoing stipulated 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 $1,080.03 to be intercepted and applied against his debt to the State of Florida for past due child support.

Respectfully submitted and entered this 8th day of September, 1987, in Tallahassee, 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 8th day of September, 1987.

COPIES FURNISHED:

Marian Alves, Esquire

Legal Services of North Florida, Inc.

400 North Madison St. Quincy, Florida 32351

John R. Perry, Esquire Dept. of HRS, District 2, 2639 N. Monroe St.

Tallahassee, Florida 32303

Gregory L. Coler, Secretary Dept. of HRS

1323 Winewood Blvd.

Tallahassee, Florida 32399-0700

Sam Power, Clerk Dept. of HRS

1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Docket for Case No: 87-001921

Orders for Case No: 87-001921