STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LISA J. HINSON,

Petitioner,

vs.

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

Respondent.

)

)

)

)

) Case No. 03-1744

)

)

)

)

)

)

)

RECOMMENDED ORDER

This cause came on for a disputed-fact hearing before Ella Jane P. Davis a duly-assigned Administrative Law Judge of the Division of Administrative Hearings, on June 23, 2003 (live) and June 27, 2003 (by telephone).

APPEARANCES

For Petitioner: Lisa J. Hinson, f/k/a

Lisa J. Sylvester, pro se 2216 Northwest 11th Street Jacksonville, Florida 32209

For Respondents: Chriss Walker, Esquire

Department of Revenue Child Support Enforcement Post Office Box 8030

Tallahassee, Florida 32314-8030 and

Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether the Department of Revenue is entitled to retain and apply Petitioner's $1,000.00 lottery prize and apply it so as to reduce an outstanding arrearage for child support.

PRELIMINARY STATEMENT

On or about February 3, 2003, Respondent Department of Revenue (DOR), notified Petitioner, Lisa J. Hinson, f/k/a Lisa

J. Sylvester, that it had certified to Respondent Department of the Lottery (Lottery) that Petitioner owed a child support obligation exceeding her $1,000.00 lottery prize and that the prize money had been sent by Lottery to DOR to be permanently withheld from Petitioner and applied to reduce her child support arrearage.

Petitioner requested a disputed-fact hearing, and DOR referred the matter to the Division of Administrative Hearings on or about May 15, 2003.

The cause came on for a disputed-fact hearing on June 23, 2003, live, in Tallahassee, Florida, and on June 27, 2003, by telephone. Petitioner testified on her own behalf and had Petitioner's Exhibits One through Ten marked for identification. Petitioner's Exhibits Six through Eight were proffered but not admitted. Respondents presented the oral testimony of Patricia Ash, an employee of the Department of Revenue, and had admitted Department of Revenue's Composite Exhibit One and Department of

the Lottery's Composite Exhibit One. At the close of the June 27, 2003, hearing, the parties agreed to leave the record

open until August 29, 2003, for the filing, as a joint exhibit, of a circuit court order which was expected to determine any current child support arrearage.

No transcript of the June 23, and 27, 2003, proceedings was filed.

On July 1, 2003, a Post-Hearing Order explaining how to prepare proposed recommended orders was entered.

An Order entered September 8, 2003, determined that the record had remained open until August 29, 2003; that August 29, 2003, had passed; and that no additional exhibit had been filed. The Order closed the record as of that date, and required that the parties file their respective proposed recommended orders by September 29, 2003.

On September 19, 2003, Respondents filed a Case Status Report stating that circuit court orders were then available.

On October 13, 2003, Respondent filed a Notice of Filing Order, attaching a Child Support Order Report of the Child Support Hearing Officer which had been entered in the collateral case on September 16, 2003, and an Order for Child Support and Other Relief entered in the collateral case by Circuit Court Judge David N. Gooding on September 19, 2003.

A telephonic conference call was convened on October 13, 2003, with all parties present. The undersigned agreed to consider the September 16 and 19, 2003, Orders from the collateral case. By an Order entered the same date, the undersigned memorialized that there had been a telephonic conference call with the parties; on the same date that Petitioner had admitted that she had received the various notices and Orders for the collateral circuit court case, despite an incomplete address; that Petitioner had asserted that someone in the Office of Attorneys Dick or Hemphill had orally told her she could ignore the Circuit Court's Amended Notice of Hearing for September 16, 2003, and that was the reason she had not appeared on that date; that the parties had stipulated that Petitioner would be given until October 23, 2003, to file with the Division of Administrative Hearings, a copy of any circuit court order vacating its September 19, 2003, Order or otherwise supporting Petitioner's position herein; that if Petitioner timely filed such circuit court order, the parties would have until November 10, 2003, to file their proposed recommended orders; and that if Petitioner filed no circuit court order by October 23, 2003, the record herein would be closed once more without such evidence and the parties would be required to file their proposed recommended orders by October 30, 2003.

No further filings were received from Petitioner.

The circuit court orders of September 16 and September 19, 2003, which were after-filed by Respondent have been considered, together with all testimony and evidence presented on

June 23 and 27, 2003.

Respondents filed their Joint Proposed Recommended Order on November 6, 2003, which has been considered. Petitioner filed

no proposed order.

FINDINGS OF FACT

1. A Final Judgment for Dissolution of Marriage was entered on December 8, 1997. It required Petitioner, as the non-custodial parent, to pay child support in the amount of

   $250.00 per month. That Order specified that the first child support payment would be retroactive to October 2, 1997.

2. Petitioner did not make each bi-weekly child support payment as they became due, beginning October 2, 1997.

3. There were extenuating circumstances, but the circuit court's child support requirement was not modified, and as a result of Petitioner's failure to make the court-ordered bi- weekly child support payments, DOR initiated an enforcement action against Petitioner.

4. DOR's first enforcement action against Petitioner resulted in the entry of a November 5, 1999, "Order Enforcing Child Support-Order Discharging Writ of Attachment-Report of the Child Support Hearing Officer."

5. The enforcement order was based upon Domestic Relations Depository Records as of November 3, 1999. The enforcement order established an arrearage in the amount of $5,227.66 owed by Petitioner. It specified that Petitioner must pay this amount at the rate of $115.00 in current child support bi-weekly payments, plus $5.00 per week towards the arrearage.

6. Petitioner established that she has, in fact, paid varying amounts towards her arrearage; however, all but one of the amounts she demonstrated she had paid were paid prior to the November 5, 1999, Order that established her arrearage at

   $5,227.66. The sole exception is that Petitioner submitted Exhibit P-10, a pay stub for the period ending May 24, 2003, showing her earnings and deductions, and that pay stub indicates that she paid child support, apparently via garnishment, in the amount of $240.00. Unfortunately, for Petitioner, there is no way to determine from this exhibit how the $240.00 related to current or past due child support as of that date. So, at most, it would have reduced her $5,227.66 debt by only $240.00.

7. On September 16, 2003, a Child Support Hearing Officer again reviewed Petitioner's payment history and determined that her arrearage had grown to $6,575.09, through the payment due date of September 16, 2003. An Order was entered which allowed Petitioner's current support obligation to remain at $115.00 bi- weekly, but which increased from $5.00 to $10.00 bi-weekly the

   amount she will now be required to pay towards reducing the

   
   

   $6,575.09 arrearage. In an Order dated September 19, 2003, the circuit court established the arrearage owed by Petitioner to be

   $6,575.09, set Petitioner's payback requirements as had the Hearing Officer, and directed the Domestic Relations Depository to amend its records accordingly.

8. Petitioner did not produce a Motion to Vacate either of the September 2003, Orders establishing her arrearages. Petitioner also did not produce any Notice of Appeal.

   Therefore, the presumption is that the Order entered by the circuit court judge on September 19, 2003, is now binding on all parties.

   CONCLUSIONS OF LAW

   
   

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

10. Section 24.115(4), Florida Statutes (2002), provides:

    
    

    It is the responsibility of the appropriate state agency and of the judicial branch to identify to the department [of the Lottery], persons owing an outstanding debt to any state agency or owing child support collected through a court. . . Prior to the payment of a prize $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. [bracketed material added for clarity]

    
    

11. Section 409.2557, Florida Statutes (2002), 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. Section 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. [bracketed material added for clarity]

       
       

12. DOR has established that Petitioner owes child support in excess of her lottery prize money. DOR is authorized to collect the accrued arrearage of child support owed by the Petitioner.

13. Petitioner has not shown that she has paid all of the child support she owes. Therefore, DOR is not precluded from withholding her $1,000.00 lottery winnings.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of Law, it is

RECOMMENDED that the Department of Revenue enter a Final Order wherein it retains Petitioner's $1,000.00 lottery prize and applies it to reduce the accrued arrearage of $6,575.09 established in the September 19, 2003 Circuit Court Order.

DONE AND ENTERED this 1st day of December, 2003, in Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 1st day of December 2003.

COPIES FURNISHED:

Lisa J. Hinson, f/k/a Lisa J. Sylvester

2216 Northwest 11th Street Jacksonville, Florida 32209

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

Tallahassee, Florida 32314-8030

Louisa Warren, Esquire Department of the Lottery

250 Marriott Drive Tallahassee, Florida 32301

James Zingale, Executive Director Department of Revenue

104 Carlton Building Tallahassee, Florida 32399-0100

Bruce Hoffmann, General Counsel Department of Revenue

204 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: 03-001744

Orders for Case No: 03-001744