STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GREGORY J. AULL,

Petitioner,

vs.

DEPARTMENT OF REVENUE, CHILD SUPPORT ENFORCEMENT and DEPARTMENT OF LOTTERY,

Respondents.

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) Case No. 02-3473

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RECOMMENDED ORDER

Pursuant to notice, a hearing was held in this case on October 31, 2002, in Orlando, Florida, before William R. Pfeiffer, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Gregory Aull, pro se

107 Georgia Avenue

St. Cloud, Florida 34769

For Respondents: Chriss Walker, Esquire

Child Support Enforcement Department of Revenue Post Office Box 8030

Tallahassee, Florida 32314-8030 STATEMENT OF THE ISSUE

Whether the Department of Revenue may retain Petitioner's after-tax lottery prize of $4,074.50 and apply it to reduce the

outstanding arrearage for child support in the amount of

$11,050.00 as of October 23, 2002.

PRELIMINARY STATEMENT

On or about May 30, 2002, the Department of Revenue (DOR) notified Gregory J. Aull (Petitioner), that it had certified to the Department of Lottery (DOL) that he owed a child support obligation exceeding his $4,074.50 after-tax lottery prize. He was informed that the prize had been sent to DOR to be applied to reduce his arrearage. Petitioner requested a hearing, and DOR referred the matter to the Division of Administrative Hearings. The case was set for final hearing on October 31, 2002. Petitioner appeared pro se at the final hearing and testified under oath. DOR and DOL called one witness and introduced Composite Exhibits DOL 1, DOR 2, and DOR 3 into evidence. Respondents did not order a transcript of the hearing. Both parties were directed to file their proposed recommended orders by December 15, 2002, and Respondent complied. It was duly considered.

FINDINGS OF FACT

1. DOR and DOL are the agencies of the State of Florida charged with the duty for the administrative enforcement of the intercept of lottery prize winnings to satisfy past due child support debt.

2. Petitioner made a claim to a lottery prize in the amount of $4,074.50 after-tax on or about May 28, 2002.

3. DOR notified DOL that Petitioner was indebted to the state for court-ordered child support through the court depository and administrative cost in the amount of $13,049.25.

4. Pursuant to Section 24.115(4), Florida Statutes, Petitioner's entire lottery prize in the amount of $4,074.50 after-tax was transferred to DOR by DOL.

5. Petitioner was given written notice on May 30, 2002, of the DOR's intent to intercept his lottery prize in the amount of

   $4,074.50, it had received from DOL, and apply it to partially satisfy his unpaid child support debt.

6. Petitioner requested a formal hearing pursuant to Section 120.57(1), Florida Statutes, regarding the final decision by DOR to retain the $4,074.50 and apply it to the certified child support debt.

7. Petitioner disputes the claim by DOR that he owes child support that is being collected through a court.

8. On October 19, 1984, Catherine Siler, the custodial parent of the children, signed a non-AFDC application for child support enforcement with the Florida Department of Health and Rehabilitative Services, the predecessor to DOR.

9. On October 19, 1984, DOR filed a Uniform Reciprocal Enforcement of Support Act (URESA) petition with the Clerk of Court in Escambia County, Florida, to be forwarded to Indiana.

10. On October 26, 1984, the Escambia County Clerk of Court requested that the Indiana court issue an order to require child support payments to be paid through the Escambia County, Florida Clerk of Court Depository.

11. On May 24, 1985, the Indiana court entered an order requiring the child support payments in the case of Catherine Silver v. Gregory Aull be paid through the Escambia County, Florida Clerk of Court Depository.

12. Florida has received and continues to receive child support payments from Petitioner on behalf of Catherine Siler.

13. At a May 8, 1998, hearing, the Indiana court determined that Petitioner had a support arrearage of

    $23,009.00.

    
    

14. The Indiana court ordered Petitioner to pay the arrearage at the rate of $50.00 per week beginning May 15, 1998.

15. The order required Petitioner to execute a voluntary Wage Withholding Order.

16. Petitioner consistently made payments toward the arrearage and on May 28, 2002, Petitioner had a child support arrearage in the amount of $13,049.25.

17. On October 23, 2002, Petitioner had an arrearage of

    
    

    $11,050.00.

    
    

18. DOR intends to apply Petitioner's lottery prize in the amount of $4,074.50 to partially satisfy his past due child support debt.

    CONCLUSIONS OF LAW

    
    

19. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.569 and 120.57, Florida Statutes.

20. Section 24.115(4), Florida Statutes (1997), provides:

    
    

    It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department, in the form and formal 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.

    
    

21. Section 409.2557, Florida Statutes (1997),

    
    

    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.

    
    

22. Subsection 61.14(6)(a)1, Florida Statutes (2001),

    
    

    provides:

    
    

    When support payments are made through the local depository or through the state Disbursement Unit, 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. No deduction shall be made by the local depository from any payment made for costs and fees accrued in the judgment by operation of law process under paragraph (b) until the total amount of support payments due the obligee under the judgment has been paid.

    
    

23. DOR is authorized to collect the accrued arrearage of child support owed by Petitioner.

24. Pursuant to law, DOR is authorized to collect the debt from Petitioner's lottery prize.

25. There is competent and substantial evidence in the record to demonstrate that Petitioner owes child support

collected through a court. Specifically, the May 24, 1985, Indiana order requiring support payments to be made through the Escambia County, Florida Court Depository and the judgment establishing a support arrearage of $23,009.00 as of May 8, 1998, clearly establish that Petitioner owes child support through a court.

RECOMMENDATION

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

RECOMMENDED that the Department of Revenue enter a Final Order wherein it retains the $4,074.50 lottery prize of Petitioner and apply it to reduce the accrued arrearage of

$11,050.00 as of October 23, 2002.

DONE AND ENTERED this 31st day of December, 2002, in Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

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 31st day of December, 2002.

COPIES FURNISHED:

Gregory J. Aull

107 Georgia Avenue

St. Cloud, Florida 34769

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

Tallahassee, Florida 32314-8030

Louise Warren, Esquire Department of Lottery

250 Marriott Drive Tallahassee, Florida 32301

Bruce Hoffmann, General Counsel Department of Revenue

204 Carlton Building Tallahassee, Florida 32399-0100

James Zingale, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

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: 02-003473

Orders for Case No: 02-003473