STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DELORES TERRELL, )

)

Petitioner, )

)

vs. ) Case No. 97-3535

)

DEPARTMENT OF REVENUE and )

DEPARTMENT OF LOTTERY, )

)

Respondents. )

)

RECOMMENDED ORDER

An administrative hearing was conducted on January 26, 1999, in Tampa, Florida, by Daniel Manry, Administrative Law Judge, Division of Administrative Hearings. The Petitioner and court reporter attended the hearing in Tampa. The undersigned participated by video conference from Tallahassee, Florida, along with Respondents and their witnesses.

APPEARANCES

For Petitioner: Delores M. Terrell

4810 Clewis Avenue, Apartment B Tampa, Florida 33063

For Respondents: Chriss Walker, Esquire

Department of Revenue Child Support Enforcement Post Office Box 8030

Tallahassee, Florida 32314-8030

Louisa Warren, Esquire Department of Lottery

250 Marriott Drive Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondents should use Petitioner's entire lottery prize of $2,008.00 to pay a delinquent child support obligation of $2,371.68, pursuant to Section 24.115(4), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated.)

PRELIMINARY STATEMENT

By letter dated March 12, 1997, Respondent, Department of Revenue ("DOR"), notified Petitioner that her prize had been sent to DOR to reduce a child support arrearage owed by Petitioner.

Petitioner timely requested an administrative hearing.

At the hearing, Petitioner testified in her own behalf and submitted one composite exhibit for admission in evidence. DOR called two witnesses and submitted three exhibits for admission in evidence.

The identity of the witnesses and exhibits and any attendant rulings are set forth in the record of the proceeding. Neither party requested a transcript.

DOR timely filed its Proposed Recommended Order on

April 15, 1999. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner has failed to comply with a previous court order compelling her to pay child support. On February 1, 1999,

   the Circuit Court, Thirteenth Judicial Circuit, in and for Hillsborough County, Florida, in Case No. 93-12473, denied a motion to hold Petitioner in contempt of court.

2. The Court did not hold Petitioner in contempt due to a claimed disability. The Court could not find that she had the ability to pay the child support obligation.

3. The Court gave Petitioner thirty days to provide verification of disability and an inability to work. However, the court did not waive or extinguish the arrearage for child support.

4. The Court ordered that any and all other terms and provisions which were previously ordered and not specifically addressed in the Order Denying a Motion for Contempt remained in full force and effect until further order of the Court. The previous order establishing the arrearage for child support was not nullified by the court. Petitioner still owes an arrearage for child support of $2,371.68 as of June 9, 1998.

5. Petitioner failed to show in this proceeding that she had satisfied the arrearage. At previous circuit court hearings on August 12, 1998, and January 20, 1999, Petitioner failed to persuade the court that she had satisfied her obligation for delinquent child support.

6. The August 12, 1998, hearing resulted in an Order on August 27, 1998, requiring Petitioner to pay $150.00 per month toward delinquent child support totaling $2,371.68 as of

   June 9, 1998. The January 20, 1999, hearing resulted in the Court's withholding a citation of contempt but requiring Petitioner to provide verification of disability and verification of inability to work, within 30 days from the date of the Order.

7. The undersigned allowed Petitioner additional time to submit a late-filed exhibit consisting of an Order of the Circuit Court extinquishing Petitioner's obligation for delinquent child support. Petitioner has failed to timely file the late-filed exhibit and has not requested an extension of time in which to file the late-filed exhibit.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Sections

   120.569 and 120.57(1). The parties were duly noticed for the hearing.

9. The burden of proof is on Petitioner in this proceeding. Petitioner must show by a preponderance of the evidence that she is entitled to her lottery prize. Florida Department of Transportation vs. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino vs. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).

10. Section 24.115(4) provides:

    
    

    (4) It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department [of Lottery], in the form and format prescribed by the department,

    persons owing an outstanding debt to any state agency or 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 shall transmit the amount of the debt to the agency claiming the debt and shall authorize payment of the balance to the prize winner after deduction of the debt.

11. Section 409.2557 provides:

    
    

    1. The department[of Revenue] is designated as the state agency responsible for the administration of the child support enforcement program, Title IV-D of the Social Security Act, 42

       U.S.C. ss. 651 et seq.

       
       

    2. The department in its capacity as the state Title IV-D agency shall have the authority to take actions necessary to carry out the public policy of ensuring that children are maintained from the resources of their parents to the extent possible. The department's authority shall include, but not be limited to, the establishment of paternity or support obligations, as well as the modification, enforcement, and collection of support obligations.

12. DOR is authorized to collect the accrued arrearage of child support owed by Petitioner. Petitioner complains that she has paid all of the child support she owes. She submitted assorted checks showing payments to various individuals. She claims that because she missed several hearings, the Court did not hear her testimony and did not consider her alleged payments.

13. On January 20, 1999, Petitioner had her day in court. The Court did not reduce the arrearage. Petitioner failed to

    show in this proceeding that she has satisfied her obligation. The obligation for past-due child support applies to the lottery prize.

    
    

14. Petitioner has been unable to identify any court order which forgives, waives, or in any other manner discharges the accrued arrearage. Petitioner testified that she has made none of the payments ordered in the August 27, 1998, Court Order.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law reached, it is

RECOMMENDED:

That DOR enter a final order withholding all of Petitioner's lottery prize.

DONE AND ENTERED this 4th day of May, 1999, in Tallahassee, Leon County, Florida.

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 4th day of May, 1999.

COPIES FURNISHED:

Delores M. Terrell

4810 Clewis Avenue, Apartment B Tampa, Florida 33063

Chriss Walker, Esquire Department of Revenue Child Support Enforcement Post Office Box 8030

Tallahassee, Florida 32314-8030 Louisa Warren, Esquire Department of Lottery

250 Marriott Drive Tallahassee, Florida 32399

Linda Lettera, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

Larry Fuchs, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

Sue M. Cobb, Interim Secretary Department of Lottery

250 Marriott Drive Tallahassee, Florida 32301

Ken Hart, General Counsel Department of Lottery

250 Marriott Drive Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 97-003535

Orders for Case No: 97-003535