STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROY KALBACH, )

)

Petitioner, )

)

vs. ) CASE NO. 89-0277

) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held by the Division of Administrative Hearings before one of its designated Hearing Officers, William

1. Cave, on March 1, 1989 in Brooksville, Florida. The issue for determination is whether the Respondent should be allowed to intercept Petitioner's federal income tax refund to satisfy, or partially satisfy, an alleged arrearage of past-due child support payments.

   
   

   APPEARANCES

   
   

   For Petitioner: Roy K. Kalbach, Pro Se

   512 12th Avenue Leisure Hills

   Brooksville, Florida 34610

   
   

   For Respondent: Judith Greene, Esquire

   CANDICE A. MURPHY, P. A.

   Post Office Box 4815 Clearwater, Florida 34618

   
   

   BACKGROUND

   
   

   This is a case in which Respondent instituted a proceeding for the collection through Federal Tax Refund Offset of a sum of money alleged to be owed by Petitioner to the state of Florida based on an order of the Circuit Court of Pasco County, Florida. Petitioner contests the interception of his federal income tax refund primarily on the grounds that the amount of the alleged arrearage is incorrect based on Respondent's Final Order entered subsequent to the order of the Circuit Court of Pasco County, Florida, wherein the parties agreed on the amount of arrearage due as of March 22, 1988, which was used to intercept Petitioner's 1987 federal income tax refund.

   
   

   In support of the intercept, Respondent presented the testimony of Luz Martinez. Respondent's exhibits 1, 2, 3, 4 and 5 were received into evidence. Petitioner testified on his own behalf. Petitioner's exhibit 1 was received into evidence.

   Although Petitioner did not waive his right to file posthearing Proposed Findings of Fact and Conclusions of Law, he has failed to file any. Respondent submitted posthearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact submitted by the Respondent has been made as reflected in the Appendix to the Recommemded Order entered in this case.

   
   

   FINDINGS OF FACT

   
   

   Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

   
   

   1. By Order of the Circuit Court of Pasco County, Florida, dated September 14, 1987, it was determined that Petitioner owed $1,560.40 in back child support payments which had been assigned to the state of Florida by the mother of the child on February 1, 1983, for assistance received by her from the state of Florida. Additionally, Petitioner was ordered to pay: (a) child support in the amount of $178.00 per month; (b) %15.00 per month on the arrearage and; (c)

      $5.00 per month clerk's fee for a total of $198.00 per month.

      
      

   2. Subsequent to this circuit court order, Respondent moved to intercept Petitioner's 1987 federal income tax refund, and Petitioner protested. An informal administrative hearing was held and the Respondent entered a Final Order wherein it was agreed between the parties that Petitioner owed $1,020.40 in past-due child support payments as of March 22, 1988. Although this figure of $1,020.40 cannot be reconciled with the Clerk's records in Pasco County, it is the figure agreed upon by the parties as being due as of March 22, 1988, and was used to intercept the Petitioner's 1987 federal income tax refund.

      
      

   3. On October 7, 1988, Petitioner, by order of the Circuit Court of Pasco County, Florida, was granted custody of the child for which he had been paying child support, and was no longer required to pay child support for the child. There is evidence that Petitioner had custody of the child in September 1988, but the Order states that "custody is to be upon the signing of the order". This order did not address the issue of current child support or past-due child support.

      
      

   4. Subsequent to March 22, 1988, the Petitioner was obligated to pay child support for the months of April 1988, through September 1988, for a total of

      $1,068.00. ( Six months at $178.00 per month).

      
      

   5. An Income Deduction Order entered by the Circuit Court of Pasco County, Florida, required Petitioner's employer to deduct $198.00 per month from Petitioner's salary and remit same to the Clerk's office for the payment ordered by the court on September 14, 1987. Respondent's employer accomplished this by rendering payment in bi-weekly amounts of $91.75.

      
      

   6. During the period from March 22, 1988, through October 7, 1988, Petitioner should be given credit for monies deducted by his employer and remitted to the Clerk's office in the net amount of $1,301.25 (Fifteen payments of $91.25 minus $75.00 Clerk's fee). Two biweekly payments remitted by Petitioner's employer during this period were improperly entered into the Clerk's record but were corrected between October 24, 1988 and November 14, 1988. The 15 payments for which Petitioner has been given credit take into consideration the 2 payments improperly entered into the Clerk's record.

      
      

   7. Respondent should be given credit for $365.60, the amount Respondent received as a result of the 1987 federal income tax refund intercept.

   8. Respondent should also be given credit for the following: (a) HLA blood test refund of $210.00 and; (b) Clerk's refund of fees of $65.00.

      
      

   9. The total amount owed by Petitioner as of October 7, 1988 was $2,088.00 ($1,020.40 arrearage as agreed by the parties and set forth in Respondent's Final Order plus $1,068.00 child support payments Petitioner was obligated to pay between March 22, 1988 and October 7, 1988) minus a credit of $1,941.85 ($1,301.25 employer payments, plus $365.60 tax intercept credit, plus $210.00 HLA credit, plus $65.00 Clerk's credit) for a net amount owed of $146.55 ($2,088.40 total amount owed after March 22, 1988 minus a total credit of

      $1,941.85).

      
      

      CONCLUSIONS OF LAW

      
      

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

       
       

   11. 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 Rehabilative Services under Section 409.2561, Florida Statutes, because the noncustodial parent failed to pay child support, the custodial parent as a recipent 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 arrearage by legal process. Section 409.2561(2)(a) , Florida Statutes.

       
       

   12. In the instant case, as assignee of the custodial parent's right to arrearage and child support payments, the Respondent proceeded to intercept Petitioner's 1987 federal income tax refund using the order of the Circuit Court of Pasco County, Florida entered on September 14, 1987. The Petitioner protested the intercept, and was given an informal hearing pursuant to Section 120.57(2), Florida Statutes, which resulted in Respondent's Final Order finding Petitioner to be $1,020.40 in arrears of his child support payments as of March 22, 1988. Using the arrearage figure in the Final Order and proceeding forward by debiting child support payments owed by the Petitioner after Respondent's Final Order and crediting Petitioner with payments made by Petitioner's employer, HLA refunds, 1987 federal income tax intercept and Clerk's refund, the Petitioner owes the state of Florida $146.55.

       
       

   13. Respondent contends that the amount of $1,020.40 arrearage in the Final Order is incorrect, and the correct manner in which to proceed is to disregard the arrearage figure in the Final Order and refer back to the Circuit Court Order of September 14, 1987, and using the figure of $1,560.00 proceed forward from the date of June 30, 1987 crediting and debiting as the Clerk's record reflects which would result in the Petitioner owing the state of Florida

$1,029.62. There is no basis to disregard the Final Order. See Paragraph 5 of the Findings of Fact and Paragraph 4 of the Conclusions of Law which were adopted by and incorporated in the Final Order dated June 13, 1988. Respondent is, good or bad, "stuck" with the arrearage figure agreed upon in its Final Order, and as a result the Petitioner owes the state of Florida $146.55.

RECOMMENDATION

Having considered the foregoing Findings of Fact and Conlusions of Law, the evidence of record and the candor and demeanor of the witness, it is, therefore,

RECOMMENDED that Respondent enter a Final Order finding that Petitioner owes the state of Florida the sum of $146.55 in past-due child support payments, and providing for Respondent to intercept Petitioner's 1988 federal income tax refund for the amount of $146.55 unless Petitioner pays this amount to the Respondent prior to the Respondent filing a federal income tax refund intercept with the Internal Revenue Service, in which case no tax refund intercept would be necessary.

RESPECTFULLY submitted and entered this 28th day of March, 1989, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

FILED with the Clerk of the Division of Administrative Hearings this 28th day of March, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-0277

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.

No posthearing Proposed Findings of Fact were submitted by the Petitioner.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent

1.-2. Adopted in Finding of Fact 1. 3.-4. Adopted in Finding of Fact 3.

1. Subordinate to facts actually found in the Recommended Order.

2. Adopted in Finding of Fact 2.

3. Subordinate to facts actually found in the Recommended Order.

4. Immaterial since the was an agreement as to the amount of arrearage owed as of March 22, 1988.

5. Adopted in Finding of Fact 6.

6. Adopted in Findings of Fact 7 and 8.

7. Adopted in Finding of Fact 6.

12.-13. Subordinate to facts actually found in the Recommended Order.

COPIES FURNISHED:

Gregory L. Coler, Secretary Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Sam Powers, Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, Florida 32399-0700

Judith Greene, Esquire CANDICE A. MURPHY, P. A.

P. O. Box 4815 Clearwater Florida 34618

Roy K. Kalbach

512 12th Avenue Leisure Hills

Brooksville, Florida 34610

Docket for Case No: 89-000277

Orders for Case No: 89-000277