STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENRIQUE RIVERA, )

)

Petitioner, )

)

vs. ) CASE NO. 88-2030

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on July 28, 1988. Thereafter, the parties were afforded leave to submit memoranda supportive of their respective positions. Respondent's counsel has submitted a proposed recommended order which was considered in preparation of this Recommended Order. Proposed findings which are not incorporated herein are the subject of specific rulings in an appendix attached hereto.

APPEARANCES

For Petitioner: Phillip J. Coniglio, Esquire

12595 North East 7th Avenue North Miami, Florida 33162

For Respondent: Deborah Magid, Esquire

Assistant State Attorney

Child Support Enforcement Division 1490 North West 27th Avenue

Miami, Florida 33125 ISSUE

The issue presented for decision herein concerns the propriety of respondent's action of intercepting petitioner's Internal Revenue Service income tax refund to satisfy a child support arrearage.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I make the following relevant factual findings:

1. Petitioner, Enrique Rivera, was married to Emma Rivera on April 15, 1973, and of that marriage two children were born, Lisa and Tomas. A Final Judgement of Dissolution of Marriage was entered on September 8, 1980 in Dade County, Florida.

2. On March 14, 1980, however, Petitioner's then spouse, Emma Rivera obtained an order of support in the 264th District Court of Bell County, Texas, (Texas) whereby she was awarded $75 every two weeks per child for child support for petitioner's two children. The child support payments were to commence on March 15, 1980. (Respondent's exhibit 1).

   
   

3. The final judgment of dissolution of marriage entered by the circuit court of Dade County, Florida, on September 8, 1980, required petitioner to pay the sum of $75 every two weeks for child support based on the order of support issued in Texas. (Respondent's exhibit 2).

   
   

4. During late 1987, petitioner, received a pre-offset notice from the Internal Revenue Service (IRS) indicating that it would intercept and apply an IRS tax refund to fully or partially satisfy a past due child support obligation. (Respondent's exhibit 2).

   
   

5. Petitioner signed a judgment agreement in Texas during 1980 wherein he agreed to pay child support in the amount of $75 per child every two weeks to Emma Rivera for the support of his minor children. (Respondent's exhibit 3).

   
   

6. On January 9, 1980, Emma Rivera signed a uniform reciprocal enforcement of support petition seeking an order of support under the Uniform Reciprocal Enforcement of Support Act (URESA). Respondent, through its URESA Division, obtained copies of the final judgment of dissolution of marriage, the support petition and the account master record display of the Clerk of the Court, Central Depository of the Eleventh Judicial Circuit of Florida, in and for Dade County, Family Division. Based on information obtained from those copies, petitioner owed Emma Rivera child support arrearage in the amount of $14,436 as of July 15, 1988. (Respondent's composite exhibit 3).

   
   

7. Petitioner disputes that he owes any child support arrearage and contends that the judgment agreement he signed in 1980 was altered after he signed it and that subsequent court orders relied upon that judgment to establish an incorrect amount for child support. Petitioner maintains that there was a typographical error in the Texas support order and that he was only obligated to pay $75 per month for each of the two children for a total of

   $150.00 per month. The agreement Petitioner signed in Texas however obligated him to pay child support in the amount of $75 per child every two weeks for his minor children. That support obligation shows that petitioner owes Emma Rivera a child support arrearage in the amount of $14,436 as of July 15, 1988.

   Petitioner sought an amendment to the Texas order of support and he has been unable to obtain any amendment to that order as of the date of this administrative hearing.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

10. The authority of the respondent is derived from Chapters 61 and 409, Florida Statutes.

11. Respondent has introduced competent and substantial evidence which indicates Petitioner owes a child support arrearage. This is so even after viewing the evidence and petitioner's argument in the light most favorable to him, i.e., that the amount specified in the court order for child support is incorrect. All of the child support calculations introduced demonstrated that petitioner owes child support and such payments are delinquent.

    
    

12. Unpaid installments of child support constitute a vested property right. Guarino v. Guarino, 431 So.2d 189 (Fla. 2d DCA 1983).

    
    

13. The respondent's action of intercepting petitioner's Internal Revenue Service income tax refund to satisfy child support arrearage was proper in that respondent fully complied with Sections 42 U.S.C. 664 and 45 C.F.R. 303.72, by relying upon the language of certified court orders which established a child support obligation of petitioner in the amount of $75 per child every two weeks. Based on that obligation and by relying upon the certified records of the central depository, which currently shows that there is an outstanding child support arrearage owed by petitioner on behalf of his two minor children, respondent properly initiated the request to intercept petitioner's IRS refund to satisfy the outstanding obligation.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that:

The respondent, Department of Health and Rehabilitative Services, enter a final order recommending that the Internal Revenue Service forward the sum collected from its intercept to the respondent forthwith for payment toward satisfaction of the child support arrearage due and owing Emma Rivera.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of November, 1988.

COPIES FURNISHED:

Phillip J. Coniglio, Esquire 12595 North East 7th Avenue North Miami, Florida 33161

JAMES E. BRADWELL

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 1st day of November, 1988.

Deborah Magid, Esquire Assistant State Attorney

Child Support Enforcement Division 1490 North West 27th Avenue

Miami, Florida 33125

R. S. Power, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700

John Miller, Esquire Acting General Counsel Department of Health and

Rehabilitative Services Fort Knox Executive Center 2727 Mahan Drive

Suite 309

Tallahassee, Florida 32308

Docket for Case No: 88-002030

Orders for Case No: 88-002030