STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, ex rel., )

GERALD LEWIS as Comptroller and ) Head of the Department of )

Banking and Finance, )

)

Petitioner, )

and )

)

DEPARTMENT OF HEALTH AND ) CASE NO. 88-2372 REHABILITATIVE SERVICES and )

DEPARTMENT OF THE LOTTERY, )

)

Intervenor, )

)

vs. )

)

JAMES ARNSTEIN, )

)

Respondent. )

)

RECOMMENDED ORDER

Final hearing in the above-styled action was held on July 22, 1988, in Melbourne, Florida, before Mary Clark, Hearing Officer from the Division of Administrative Hearings.

The parties were represented as follows: For Petitioner: Jo Ann Levin, Esquire

Office of Office of the Comptroller Comptroller The Capitol, Suite 1302

Tallahassee, Florida 32399-0350

For Intervenors: Chriss Walker, Esquire Department of Department of Health and

Health and Rehabilitative Services Rehabilitative 1317 Winewood Boulevard

Services Tallahassee, Florida 32399-0700

and

Department of Louisa Hargrett, Esquire the Lottery Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32301

For Respondent: James Arnstein

517 Wilson Avenue

Satellite Beach, Florida 32937

BACKGROUND AND PROCEDURAL MATTERS

On April 4, 1988, James Arnstein was notified by certified mail that the Office of the Comptroller deducted $3,940.92 from his lottery prize of

$5,000.00. The deduction reflected funds which the Department of HRS certified he owed for child support or related debts.

Mr. Arnstein made a timely request for a formal hearing to contest the deduction.

Shortly thereafter, the Department of Health and Rehabilitative Services and Department of the Lottery were joined as voluntary intervenors in the proceeding.

At the final hearing the state agencies presented documentary evidence regarding the basis for the deduction and the testimony of HRS Child Support Enforcement Supervisor, Alfred Jerome Jenkins. Mr. Arnstein submitted documentary evidence, testified in his own behalf and presented testimony from his companion, Susan Metzler.

After the hearing the state agencies submitted a joint proposed recommended order. The proposed findings of fact are addressed in the attached appendix.

ISSUES

The issue for determination is whether $3,940.92 was properly deducted from James Arnstein's $5,000.00 lottery prize.

FINDINGS OF FACT

1. On March 7, 1988, James Arnstein, a resident of Satellite Beach, in Brevard County, Florida, filed his claim as an "instant winner" of $5,000.00 in the Florida Department of Lottery's "Cool Million" scratch card game. (Pet. Ex. #1, composite)

   
   

2. The Department immediately determined that Mr. Arnstein was on a list of individuals allegedly owing a debt to a state agency or owing child support. The Department of HRS certified to the Department of the Lottery that James Arnstein owed $3,940.92 in child support arrearage as of March 7, 1988. (Pet. #1, composite)

   
   

   The prize funds were transmitted to the Comptroller's Office where the

   $3,940.92 was deducted, and the balance of $1,059.08 was sent to Mr. Arnstein with his notice of right to a hearing.

   
   

3. In his request for hearing and in his testimony at the hearing, James Arnstein argued that he does not owe the funds because his wife left the state and he was unable to see the children. He now has the children with him and desires the money for their support. He admitted that there were times when he did not pay support.

   
   

4. In 1981, James Arnstein and his wife, Mary Ann Arnstein, were separated. His wife obtained Aid to Families with Dependent Children (AFDC) on behalf of the couple's children, and agreed to have HRS pursue child support from James. As assignee of the child support benefits, HRS' child support enforcement program obtained an order in Brevard County Circuit Court Case No. 81-517-FD-0, on March 26, 1981, from Judge Frances Ann Jamieson requiring that

   James Arnstein pay 76.00 biweekly to HRS, through the court depository. (HRS exhibit #1)

   
   

   According to the depository records, as of December 31, 1982, Mr. Arnstein was $3,116.00 in arrears on those payments. (HRS Exhibit #1)

   
   

5. James and Mary Ann Arnstein were divorced on October 4, 1985. The Final Judgement of Dissolution in Brevard County Circuit Court Case No. 85-3368- FD-T granted sole custody of the four children to Mary Ann, and ordered James to pay $75.00 per month, per child, for support and maintenance. (HRS Exhibit #2)

   
   

6. Mary Ann from time to time still received AFDC benefits for the children, and again assigned the child support payments to HRS. On January 28, 1987, the HRS child support enforcement program obtained an order in Case No. 85-3368-FD-T, finding James Arnstein in contempt for nonpayment of support, establishing an arrearage of $3,383.00, and ordering weekly payments of $14.00 on the arrearage, and $70.00 on the regular support. The payments were to be made to HRS through the court depository. (HRS Exhibit #3)

   
   

7. Sometime around January 1987, Mary Ann left the state with the children. James Arnstein claims that he stopped making payments at that point because he did not know where the children were, and could not visit them as provided in the Judgement of Dissolution.

   
   

8. Ms. Arnstein apparently ended up in Massachusetts and received AFDC in that state. On January 8, 1988, the HRS child support enforcement program obtained an order for child support in Civil Action No. 87-13357-FD-M, in Brevard County Circuit Court under the Uniform Reciprocal Enforcement of Support Act (URESA), requiring that the $70 per week child support payments be made to the court depository and be disbursed to the social services agency in Hingham, Massachusetts. The URESA Order includes this handwritten statement: "Jurisdiction reserved on welfare reimbursement and on arrearages under DOM since Pet. violated paragraph 7 of the Order." (HRS Exhibit #4)

   
   

   Paragraph 7 of the Dissolution of Marriage Judgement forbids removal of the children from the state, without written consent of the Court, except for one

   14-day period per year.

   
   

   The statement on the URESA Order is ambiguous as it could relate to arrearages and reimbursement due to the Massachusetts Agency, rather than HRS, or it could relate to support payments which Mr. Arnstein failed to make under the January 28, 1987, contempt order. Neither the HRS witness nor Mr. Arnstein could explain the statement, although Mr. Arnstein claims, erroneously, that he is somehow fully exonerated from paying any of his past due support obligations.

   
   

   On April 5, 1988, Circuit Judge John Dean Moxley suspended the URESA Order of January 8, 1988, and directed the Clerk to hold all monies paid by James Arnstein in escrow. (Respondent's exhibit #1)

   
   

9. The URESA Order and its subsequent suspension would be irrelevant, but for the parties' conflicting claims as to its effect. James Arnstein argues that it forgives his past debts; the state agencies in their joint proposed recommended order argue that payments due under the URESA order were only partially made from its entry until March 7, 1988, when the arrearage was certified to the Department of the Lottery.

   There is no evidence to support this latter argument. HRS Exhibit #5, a certified copy of the court depository support payment record relating to case #87-13357 (the URESA proceeding), reflects regular payments between January 12, 1988, and March 16, 1988, and a $213.92 credit (overpayment), as of July 20, 1988, the date of the computer printout.

   
   

10. HRS Exhibit #6 is a certified copy of the court depository support payment record for case #85-03368 (the dissolution and subsequent contempt proceeding). This record reflects a total arrearage as of July 20, 1988, (the date of the record's computer printout) of $7,765.00, including nonpayment on the $70.00 per week support under the January 28, 1987 contempt order. The only payment reflected in the record is $28.00 paid on April 15, 1987, on the

    $3,383.00 arrearage account established by the January 28, 1987 order.

    
    

11. There is no record in this proceeding of the total arrearage as of March 7, 1988, the date of HRS' certification to the Department of the Lottery. There is no credible explanation of the basis for the figure that was certified,

    $3,940.92.

    
    

    There is, however, an outstanding judgement of arrears dated January 28, 1987, of $3383.00, which accrued prior to Ms. Arnstein's leaving the state according to James Arnstein's testimony. There is evidence that as of the date of the hearing in this case, only $28.00 had been paid on that arrearage, leaving a balance of $3,355.00. Nothing in the URESA order affects that debt, although the support payments allegedly due after Ms. Arnstein left the state with the children are left in question by the reservation of jurisdiction noted on the order.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

13. Section 24.115(4), F.S. provides:

    
    

    (4) It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department, in the form and format prescribed by the department, persons owing child support collected through a court. Prior to the payment of a prize of $600 or more to any claimant having such an outstanding obligation, the department may transmit the prize money to the Comptroller who may authorize payment of the balance to the prize winner after deduction of the debt. If a prize winner owes multiple debts subject to offset under this subsection and the prize is

    insufficient to cover all such debts, the amount of the prize shall be applied in the manner that the Comptroller deems appropriate.

    (emphasis added)

    
    

14. The issue in this proceeding is limited to a determination of whether the amount of $3,940.92 was properly deducted from James Arnstein's lottery winnings. His actual obligation for child support, including arrearages, is

    within the exclusive jurisdiction of the Circuit Court, pursuant to Chapter 61,

    F.S. and Article V, Constitution of the State of Florida.

    
    

15. Absent a contrary statute or rule, the burden of proof is upon the party asserting the affirmative of an issue before an administrative tribunal. Balino v. HRS, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

16. The fact that James Arnstein won $5,000.00 in the lottery is uncontroverted. It is incumbent upon HRS, therefore, to establish that his winnings should be attached and that he owes the debt which is claimed by the state.

    
    

17. It was clearly established that James Arnstein owes $3,383.00, less the $28.00 payments, for a total of $3,355.00. Evidence of this debt is a certified copy of the depository payment record, which is admissible into evidence without further proof pursuant to subsection 61.181(6), F.S.

    
    

18. The Petitioners did not establish how the balance of $585.92 ($3,940.92 minus $3,355.00) is a debt, or is child support owed by James Arnstein.

19. Section 61.14, F.S. provides, in pertinent part: (5)(a) When support payments are made

    through the local depository, an unpaid

    payment or installment of support which becomes due after July 1, 1987, under any support order and is delinquent shall become, after notice to the obligor and the time for response contained therein as set forth in paragraph (b), a final judgment by operation of law and shall have the full force, effect, and attributes of a judgment entered by a court in this state for which execution may issue. The judgment shall be evidenced by a certified copy of the support order and a certified statement by the local depository evidencing a delinquency in support payments.

    (b) When an obligor is 15 days

    delinquent in making a payment or installment of support, the local depository shall notify the obligor by certified mail, return receipt requested of such delinquency and its amount. The notice shall state that failure to pay the amount of the delinquency and all other amounts which thereafter become due together with costs and a fee of $5 shall become a final judgment by operation of law against the obligor beginning 30 days after the date of such delinquency.

    * * *

    (d) The judgment by operation of law is a final judgment as to the unpaid payment or installment of money which has accrued up to the time either party makes a motion to set aside, alter, or modify the order. The court does not have the

    power to set aside, alter, or modify such order, or any portion thereof, which provides for any payment of money, either for minor children or the support of a party, which has accrued prior to the filing of such motion.

    
    

20. While HRS exhibit #6, the depository payment record as of July 20, 1988, establishes support arrearages far in excess of the unexplained balance of

    $585.92, there was no evidence presented in this proceeding that the arrearage beyond $3,355.00 has become a judgment, by operation of law in the manner described in Section 61.14, F.S., cited above, or otherwise.

    
    

21. Moreover, it is clear from the evidence in this proceeding that HRS relied on something other than the depository record of payment in certifying its amount to the Department of the Lottery, as the certified amount and the arrearages on the payment record (after deducting those arrearages occuring since March 7, 1988), do not coincide. That something was never produced or explained.

RECOMMENDATION

Based on the foregoing, it is, hereby RECOMMENDED:

That the Office of the Comptroller enter its final order finding that the amount properly deducted from James Arnstein's lottery prize was $3,355.00 rather than $3,940.92, and providing for an appropriate means of payment of

$585.92 to James Arnstein. The final order should provide that it is entered without prejudice to HRS' right to assert its claim for child support in circuit court, and once that claim is perfected, to recover the funds in any manner provided by law, including the attachment of any future lottery prize.

DONE and RECOMMENDED this 23rd day of August, 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 23rd day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2372

The following constitute my specific rulings on the findings of fact proposed by the Petitioner agencies in this proceeding:

1-3. Adopted in the Background statement and in paragraph 3.

1. Adopted in paragraph 3.

2. Adopted in part in paragraph 3. The second sentence is rejected as irrelevant.

3. Substantially adopted in paragraphs 4, 5 and 6. The characterization of the URESA order as governing the outcome of this case is rejected as contrary to the weight of evidence, both the testimony of HRS' witnesses and HRS Exhibit #5. The explanation of the reasons the court did not address reimbursement for past public assistance and arrearages is conjecture and facially inconsistent with the handwritten portion of the court's order.

7-8. Rejected as contrary to the weight of evidence, and the evidence did not establish a URESA arrearage, nor does the HRS Exhibit #3, referenced as authority for this proposed finding, address missed payments from 1/28/87 to 3/1/87. There was no explanation in this proceeding as to why the cancellation of AFDC or certification for IRS intercept is relevant or material to the issue of a lottery intercept.

COPIES FURNISHED:

Honorable Gerald Lewis Comptroller, State of Florida The Capitol

Tallahassee, Florida 32399-0350

Charles L. Stutts, Esquire General Counsel

Plaza Level The Capitol

Tallahassee, Florida 32399

Jo Ann Levin, Esquire Office of Comptroller The Capitol, Suite 1302'

Tallahassee, Florida 32399-0350

Chriss Walker, Esquire Department of Health and

Rehabilitative Services 1317 Winewood Boulevard

Tallahassee, Florida 32399-0700

Louisa Hargrett, Esquire Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32301

James Arnstein

517 Wilson Avenue

Satellite Beach, Florida 32937

Docket for Case No: 88-002372

Orders for Case No: 88-002372