STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

ADRIENNE JOYCE HORNE aka ) JOYCE FORTNER, )

)

Petitioner, )

vs. ) CASE NO. 90-3800

) DEPARTMENT OF HEATH AND ) REHABILITATIVE SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing by telephone communication on September 27, 1990.

APPEARANCES

For Petitioner: Adrienne J. Horne

Pro se

P.O. Box 2554

Lake Placid, FL 33852-2554

For Respondent: Lisa H. Heerman, Esquire

Mensh and MacIntosh, P.A. 5536 Central Avenue

St. Petersburg, FL 33707 STATEMENT OF THE ISSUE

Whether the Respondent, Department of Health and Rehabilitative Services (Department) acted properly in intercepting Petitioner's Internal Revenue Service income tax refund to satisfy child support owed to the state of Florida.

PRELIMINARY STATEMENT

This is a case in which the Department instituted a proceeding for collection through Federal Tax Referral Offset of a sum of money claimed to be owed by Petitioner to the state of Florida for monies paid by the state of Florida under the Aid For Dependent Children (AFDC) to the Petitioner's child's paternal grandmother while she had physical custody of the child and for foster care of that same child. Petitioner contests the interception of her federal income tax refund, primarily on the grounds that the final order of dissolution granted custody of the child to his father and did not require the Petitioner to pay child support.

By agreement of all parties the hearing was held by telephonic communication. At the hearing, Petitioner testified in her own behalf. Petitioner's exhibits 1, 2, and 3 were received into evidence. Respondent

presented the testimony of Don Klein. Respondent's exhibits 1, 2, and 3 were received into evidence.

No transcript was filed with Division of Administrative Hearings. Only the Respondent filed proposed findings of fact. A ruling on each of the proposed findings of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

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

1. On November 25, 1974 the Circuit Court, Pinellas County, Florida entered a Final Judgement dissolving the marriage of James Richard Fortner, Jr. and his wife Joyce Adrienne Fortner, granting the father custody of the parties' minor child, James Richard Fortner, III, and incorporating the Property Settlement Agreement (Agreement) entered into by the parties and ordering the parties to comply with the Agreement.

   
   

2. Paragraph 2 of the Agreement provides for the father to have the care, custody and control of the minor child, James Richard Fortner, III. The husband agreed to totally support the minor child and waived any contribution from the wife. Further, the father agreed to "always take care of and totally support the minor child."

   
   

3. Subsequent to the Final Order dissolving the marriage, the father's mother, Mary J. Fortner, gained physical custody of the minor child. It is unclear how the grandmother gained custody of the minor child since there is no order granting her custody.

   
   

4. Subsequent to the grandmother gaining custody of the minor child, she applied for AFDC and was granted public assistance.

   
   

5. On June 20, 1985 the Circuit Court, Pinellas County, Florida, entered an Order of Support against the Petitioner in favor of the Department and Mary

   J. Fortner in the amount of $51.50 per month ($50.00 support + 1.50 fee) to repay the state of Florida for public assistance expended on the minor child.

   
   

6. Subsequent to this Order of Support on June 28, 1988, the Circuit Court, Pinellas County, Florida heard a Motion for Contempt and Review for Increase. On August 3, 1988 the court entered an order continuing the matter until September 8, 1988 and ordered the Department to investigate how the grandmother, Mary J. Fortner obtained custody of the minor child from James R. Fortner, Jr.

   
   

7. The court file reveals that the hearing scheduled for September 8, 1988 was never held nor does the court file in this case or the dissolution of marriage case reveal any order finding Petitioner in arrears for any child support.

   
   

8. The Department claims $547.00 for reimbursement of monies paid through the AFDC program to Mary J. Fortner and $2,047.51 for reimbursement of monies paid to the custodial foster parents for the minor child.

   
   

9. There was no evidence that the Department ever attempted to investigate how Mary J. Fortner gained custody of the minor child or ever attempted to

   collect any of the public assistance funds expended on the minor child from the minor child's father who was granted custody of child and who waived child support from the Petitioner.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Title 42 USCS Sec. 664 is the federal statute providing for the collection of past-due support from federal tax refunds. With an exception not relevant here, subsection (c)(1) of Section 664 defines the term "past-due support" as follows:

    
    

    [T]he term "past-due support" means 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. (E.S.)

    
    

12. Regulations implementing the foregoing statutory provision are found at 45 CRF 303.72. Section (a) of that regulation provides that "Past-due support, as defined in Section 301.1 of this chapter, qualifies for offset . . .

    ." The definitions in Section 301.1 include the following:

    
    

    "Past-due support" means amount of support 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, which has not been paid. For purposes of referral for Federal income tax refund offset of support due an individual who has applied for services under Section 302.33 of this chapter, "past- due support" is limited to support owed to or on behalf of a minor child. (E.S.)

    
    

13. Pursuant to Section 409.2557, Florida Section, the Department has been designated as the state agency responsible for child support enforcement program, including the tax refund intercept aspects of the program.

    
    

14. Pursuant to Section 409.2561, Florida Statutes the Department obtained the Order of Support dated June 20, 1985 and attempted by a motion for contempt to enforce that order and have the court establish what, if any, arrearage the Petitioner owed pursuant to the Order For Support. At this point, the system "broke-down" and no order of contempt or determination of arrearage was ever made by the court, i.e. no "past-due support" ever determined by the court.

    
    

15. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. Florida Department of Transportation

v. J. W. C. Company, Inc., 396. So.2d 778 (1 DCA Fla. 1981). This burden falls on the Respondent and it has failed to sustain that burden in that it has not proven that the Petitioner owes "past-due support" by a court order or an order of administrative process.

RECOMMENDATION

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

That the Department enter a final order to the effect that the Department is not entitled to intercept the Petitioner's federal tax refund and further recommend that any federal tax refund which may already have been intercepted shall be returned to Adrienne Horne.

DONE and SUBMITTED this 29th day of October, 1990, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1990.

APPENDIX TO THE RECOMMENDED ORDER

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

The Petitioner did not file any proposed findings of fact and conclusions of law.

Specific Rulings on Proposed Findings of Fact Submitted by Respondent

1.-2. Covered in Preliminary Statement. 3.-4. Adopted in Finding of Fact 1.

1. Adopted in Finding of Fact 2.

2. Adopted in Finding of Fact 3.

3. Adopted in Finding of Fact 4.

4. Not material.

5. First sentence adopted in Finding of Fact 7, otherwise not material or relevant.

6. Adopted in Finding of Fact 8.

7. Not material or relevant.

8. Not a finding of fact but a quotation of Section 409.256(1), Florida Statutes, and the Department assertion as to the effect of the Order of Support which should handled in the conclusions of law.

Copies furnished to:

Adrienne J. Horne

P.O. Box 2554

Lake Placid, FL 33852-2534

Lisa A. Heerman, Esq. Mensh and MacIntosh, P.A. 5536 Central Avenue

St. Petersburg, FL 33707

Sam Power, Agency Clerk Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda Harris, General Counsel Department of Health and

Rehabilitative Services 1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS: ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

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AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES

ADRIENNE JOYCE HORNE a/k/a JOYCE FORTNER,

Petitioner, CASE NO. 90-3800

vs.

DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES,

Respondent.

/

FINAL ORDER

This cause came on before me for the purpose of issuing a final agency order. The Hearing Officer assigned by the Division of Administrative Hearings (DOAH) in the above-styled case submitted a Recommended Order to the Department of Health and Rehabilitative Services (HRS). A copy of that Recommended Order is attached hereto.

RULING ON EXCEPTIONS

Counsel excepts to findings of fact five (5) wherein the Hearing Officer found that the order of support of June 20, 1985, (Respondent's Exhibit 2) directed petitioner to pay $50.00 per month to repay the State for public assistance previously provided for support of her child. The best evidence of the mandate of the Order is the language of the Order. The Order of June 20, 1985, directs petitioner to commence paying child support on July 14, 1985, in the amount of $50.00 per month. The Order further directs that all payments must be made to the Clerk of the Circuit Court for Pinellas County. Clearly, the Order directs the payment of current child support. Findings of fact five

(5) is rejected as it is contrary to the record.

Counsel excepts to findings of fact six (6), seven (7), and nine (9) as being irrelevant to the issues before the tribunal; that is, whether petitioner had a duty to support her child and if so, whether she was delinquent in fulfilling that obligation. The challenged findings are rejected as irrelevant.

Counsel excepts to the Hearing Officer's conclusion that the system "broke down" because the court failed to rule on the Motion for Contempt and Enforcement of the Order of support.

For purposes of the issues before this tribunal the system did not break down. The Clerk of the Circuit Court continued to maintain an accounting of petitioner's support obligation. As of the hearing the Clerk's depository showed an arrearage in the amount of $2,047.51 (Respondent's Exhibit 1)

Section 61.14(5)(a)1, Florida Statutes (1989) reads as follows:

When support payments are made through the local depository, any payment or installment of support which becomes due and is unpaid under any support order is delinquent; and this unpaid payment or installment, and all other costs and fees herein provided for, become, after notice to the obligor and the time for response as set forth in this subsection, a final judgment by operation of law, which has the full force, effect, and attributes of a judgment entered by a court in this state for which execution may issue.

Thus, by operation of law there was a determination of past due support. The department's decision to utilize the tax refund intercept as a collection tool was proper. 1/

FINDINGS OF FACT

The department hereby adopts and incorporates by reference the findings of fact set forth in the Recommended Order except as noted in the ruling on exceptions.

CONCLUSIONS OF LAW

The department hereby adopts and incorporates by reference the conclusions of law set forth in the Recommended Order except where inconsistent with the ruling on exceptions.

Based upon the foregoing, it is

ADJUDGED, that a federal income tax refund intercept against petitioner, Adrienne Joyce Horne a/k/a Joyce Fortner, be APPROVED.

DONE and ORDERED this 12th day of December, 1990, in Tallahassee, Florida.

Gregory L. Coler Secretary

Department of Health and Rehabilitative Services

by

for Deputy Secretary for Operations

ENDNOTE

1/ The general principle of administrative law that

the party seeking relief has the burden of proof is applicable to a party challenging a tax refund intercept. See Graham vs.

Estuary Properties, Inc., 399 So2d 1374, 1379 (Florida 1981).

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF HRS, AND A SECOND COPY, ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED

Copies furnished to:

Adrienne J. Horne, pro se William R. Cave

Post Office Box 2554 Hearing Officer

Lake Placid, FL 33852-2554 DOAH, The DeSoto Building 1230 Apalachee Parkway

Lisa H. Heerman, Esquire Tallahassee, FL 32399-1550 MENSH & MACINTOSH, P. A.

5536 Central Avenue

St. Petersburg, FL 33707 Chriss Walker (OPCSEL)

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of the foregoing was sent to the above-named people by U.S. Mail this 21st day of December, 1990.

R. S. Power, Agency Clerk Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407

Tallahassee, Florida 32399-0700 904/488-2381

Docket for Case No: 90-003800

Orders for Case No: 90-003800