STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD M. YELVINGTON, )

)

Petitioner, )

)

vs. ) CASE NO. 88-1156

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in this matter was held on May 19, 1988, in Orlando, Florida before Mary Clark, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Ronald Yelvington, self-represented 5417 Coyote Trail

Orlando, Florida

For Respondent: Lew Merryday, Jr., Esquire

425 North Palm Avenue Palatka, Florida 32077

BACKGROUND AND PROCEDURAL MATTERS

This case arose when Department of Health and Rehabilitative Services initiated action to collect funds owed by Ronald Yelvington to the Department for past due child support. The Department sent him a notice that the funds would be collected through interception of his IRS tax refund. In response to his notice, Mr. Yelvington requested an informal hearing with personnel of the Department.

An informal hearing was conducted by Linda Harris, Esquire. After her recommended order was furnished to Marsha Yelvington, the former spouse of Ronald Yelvington, Ms. Yelvington filed written objections, based, among other reasons, on her assertion that she was not informed of the proceeding until after the hearing.

Linda Harris then recommended that the case be referred to Division of Administrative Hearings for a formal hearing. This was accomplished in March, 1988.

At the formal hearing, HRS appeared through its counsel and presented the testimony of one witness, Linda Bailey, the Child Support Enforcement Supervisor in HRS District III, Putnam County. The Department also submitted three exhibits, received into evidence without objection: certified copies of computer records of the Clerk of Circuit Court for Putnam County; an order to

repay debt and arrears, entered by Putnam County Circuit Judge E. L. Eastmore; and a stipulation to repay debt and arrears.

Ronald Yelvington testified in his own behalf. Marsha Yelvington Martin, his former spouse, and Carol Yelvington, his current spouse, also testified.

Neither party submitted post-hearing proposed recommended orders or other pleadings.

FINDINGS OF FACT

1. The marriage of Ronald Yelvington and Marsha Yelvington was dissolved some time prior to this proceeding. The couple had four children.

   
   

2. On December 3, 1982, Ronald Yelvington executed a stipulation to repay arrearages of court-ordered child support due to the State of Florida in the amount of $4,542.00. Repayment was to be made at the rate of $5.00 per week. The stipulation acknowledged the four children and acknowledged that they had received public assistance from November 1, 1978 until October 31, 1981. The Department joined in the stipulation. (Petitioner's Exhibit #2)

   
   

3. On February 18, 1983, Circuit Judge E. L. Eastmore entered an order to repay debt and arrears, adopting the terms of the parties' stipulation. Payments were to be made to the Clerk of the Circuit Court and disbursed by the Clerk to the Department, as reimbursement for public assistance paid for the benefit of Yelvington's minor children. (Petitioner's Exhibit #2)

   
   

4. Ronald Yelvington has paid regularly, by payroll deduction. As of May 18, 1988, his balance due on the arrearages account was $3,286.70, including an additional arrearage of $119.70. (Petitioner's Exhibit #1)

   
   

   Until this proceeding, Mr. Yelvington was unaware that he was accruing an additional arrearage. He attributes the arrearage to the fact that his company changed to a bimonthly pay period. His current spouse, Carol Yelvington, called HRS and Lew Merryday's office to let them know that the pay period was different. They told her they would let the Yelvingtons know if there was a problem. The next contact was the notice of IRS intercept.

   
   

5. HRS has a policy of pursuing IRS intercept even when the party is paying regularly under a stipulation regarding an arrearage, if the funds are available in a tax refund. Linda Bailey, the child Support Enforcement Supervisor, does not know how much is available in Mr. Yelvington's tax refund. She concedes that the policy causes confusion and resentment in a party who is making regular payments.

   
   

6. Ronald Yelvington agrees that he owes the arrearage, although he does not understand the basis for the additional $119.70, or why no one informed him that he was getting behind for insufficient payroll deductions.

   
   

   He believes that intercept might be a speedy resolution, but he distrusts the figures stated by HRS.

   
   

   His former and current spouses vehemently object to the intercept, as they feel that the money would otherwise go to them and their children. Neither argues that the refund is partly theirs by virtue of having filed a joint tax return as a wage earner.

7. HRS does not maintain an accounting of payments made under the child support enforcement program. It relies instead on the accounting provided by the Clerk of the Circuit Court, as it is the Clerk's office that is responsible for receiving and disbursing the funds.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. U.S. Congress has created a program of incentives for state social services agencies to become actively involved in the enforcement of support obligations owed by absent parents to their children and spouse or former spouse. See Title 42 U.S. Code, Section 651, et. seq. These state agencies are referred to as "IV-D" agencies, for Title IV-D of the Federal Social Security Act, 42 U.S.C., Section 1302. See Section 61.046(5), F.S.

   
   

   The Federal program includes a procedure allowing agencies to whom past-due support has been assigned to intercept the obligated parent's Federal tax refund payment. Title 43 U.S. Code, Section 664. This procedure is described as follows: The State Agency is required to inform the individual owing past-due support that withholding will be made and that steps may be taken by the individual to contest the action. After any contest is resolved, the agency notifies the U.S. Secretary of Treasury that the named individual owes an established amount of past-due support. If the Secretary of the Treasury finds that a refund of Federal taxes is due the individual, the past due support is withheld from the refund and paid to the state agency. At the same time, a notice is sent to the individual and to any other person who may have filed a joint return. If an amount in excess of what is owed as past-due support is deducted, the state agency must return the excess to the individual.

   
   

   "Past-due Support" is defined in Title 43 U.S. Code, Section 664(c), as:

   
   

   ... 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.

   
   

10. In Florida, the Department of Health and Rehabilitative Services is designated as the state agency responsible for administering the child support enforcement program. Section 409.2557, F.S.

    
    

11. With few non-relevant exceptions, the office of the Clerk of the Circuit Court is designated as the depository for receiving, recording, reporting, monitoring and disbursing alimony, support, maintenance, and child support payments. Section 61.181, F.S. Reports of delinquent accounts must be provided weekly by the depository to the IV-D agency. Section 61.181(4), F.S.

    
    

12. Section 409.2551, F.S. provides the legislative intent in establishing Florida's child support enforcement program:

    
    

    ... In order to render resources more immediately available to meet the needs of dependent children, it is the legislative

    intent that the remedies provided herein are in addition to, and not in lieu of, existing remedies. It is declared to be the public policy of this state that this act be construed and administered to the end that children shall be maintained from the resources of their parents, thereby relieving, at least in part, the burden presently borne by the general citizenry through public assistance programs.

    
    

    Consistent with that intent, the following was added to Section 61.17, F.S., effective October 1, 1986. (Chapter 86-220, Laws of Florida, Section 125):

    
    

    (3) The entry of a judgment for arrearages for child support, alimony, or

    attorney's fees and costs does not preclude a subsequent contempt proceeding or 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, alimony, attorney's fees or costs for which the judgement was entered.

    
    

    This latter provision expressly permits HRS to intercept a tax refund, even when the individual is fully current and up-to-date under a court ordered arrearages payment plan. See also, Department of HRS v. Archie L. Atkins, DOAH case number 86-2581, Final Order entered December 10, 1986, wherein it was noted that the legislature could not have intended the absurd result that a court order directing an individual pay over $8,000.00 at a rate of $5.00 per week be an exclusive remedy. If alternative means in that case were not available, the State could not recoup its funds for approximately 33 years.

    
    

13. In the absence of any evidence of a modification, the February 18, 1983 order of Circuit Judge E. L. Eastmore, is dispositive of the issue that an arrearage was established and that Ronald Yelvington owes funds to HRS as reimbursement for public assistance paid for the benefit of his minor children.

HRS, not Marsha Yelvington, is entitled to those funds through intercept of any available Federal tax refund, up to the amount not already paid by Ronald Yelvington.

RECOMMENDATION

Based on the foregoing, it is, hereby RECOMMENDED:

That a Final Order be entered finding that the Department should notify the Secretary of Treasury as provided in Title 42, U.S. Code, Section 644(a)(1), that Ronald Yelvington owes past-due support in an amount to be established at the time the notice is provided. That is, the sum of $3,286.70, owed as of May 18, 1988, should be reduced by those amounts paid by Mr. Yelvington since that date.

It is further recommended that Ronald Yelvington be provided a copy of the Clerk of Circuit Court accounting of his payments on the arrearage established by Judge Eastmore's February 18, 1983 Order.

DONE and RECOMMENDED this 13th day of June, 1988, in Tallahassee, Florida.

MARY CLARK

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 13th day of June, 1988.

COPIES FURNISHED:

Lew Merryday, Jr., Esquire

425 North Palm Avenue Palatka, Florida 32077

Ronald M. Yelvington 5417 Coyote Trail

Orlando, Florida 32308

Sam Power, HRS Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

John Miller, Esquire Acting General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Ms. Marsha Yelvington Martin 5834 Windermere Drive

Jacksonville, Florida 32211

Marsha Yelvington Post Office Box 608

Pierson, Florida 32080

Docket for Case No: 88-001156

Orders for Case No: 88-001156