The Issue Whether Petitioner's Federal Income Tax refund should be intercepted by Respondent?
Findings Of Fact Case No. 88-1323 On November 10, 1986, the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, entered an order finding Petitioner to be in arrears in child support payments in the amount of $3,099.30. As of July 21, 1988, Petitioner's arrearage for his child support payments was $2,430.71, Case No. 88-1324 On November 26, 1986, the Circuit Court of the Fourth Judicial Circuit, in and for Duval County, Florida, entered an order finding Petitioner to be in arrears in child support payments in the amount of $665.00. Also, the court determined that Petitioner owed the State of Florida $3,082.00 as a public assistance obligation which had been previously established by the court. As of July 21, 1988, Petitioner was in arrears in the amount of $3,432.01 in his child support payments and in the public assistance obligation. Petitioner's Case Mr. Brown is currently making all the payments he is required to make under both court orders. He admits he owes the amount at issue in this case, although he believes there may be minor discrepancies in the records and he plans to pursue this with the agency responsible for record keeping.
Recommendation Therefore, based upon the foregoing, it is RECOMMENDED that Respondent issue a final order affirming the determination that Petitioner owes past-due support. DONE and ORDERED this 24th day of August, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. COPIES FURNISHED: Billy Lee Brown 3490 Lannie Road Jacksonville, Florida 32201 Warren J. Schulman, Esquire 331 East Union Street, Suite 1 Jacksonville, Florida 32202 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact The following are the facts to which the parties have stipulated: A Complaint to Determine Paternity was filed in Duval County, Florida, in May of 1984, alleging that Archie L. Atkins was the father of Jimmy Lemont Pickney. Jimmy Lemont Pickney was born on May 1, 1971, to Betty Ruth Pickney. The birth certificate of the child did not indicate the name of the father. In his Answer to Complaint, Archie L. Atkins denied any knowledge with regard to the paternity issue, and denied that he was, in fact, the father of the minor child who was thirteen years old at the time the petition was filed. A jury trial was held on the issue of paternity. At that time, Archie L. Atkins testified that although he had met Betty Ruth Pickney, he had not had sexual intercourse with her and was unaware that she had conceived a child which she claimed to be his. However, in March of 1985 the jury determined that Archie L. Atkins was, in fact, the father of Jimmy Lemont Pickney. A Final Judgment of Paternity was entered by The Honorable John S. Cox on March 21, 1985. (Copy attached) The Court reserved jurisdiction to determine the amount of child support to be paid by Archie L. Atkins and to establish a public assistance child support obligation and to tax costs. In its Order of Modification, the Court determined that the sum of $8,611.50 was the public assistance child support obligation owed by the Defendant to the State of Florida for assistance paid on behalf of the minor from October 1974 to April 1, 1985. (Copy attached) The Defendant was ordered to pay $25 per week for the support of the minor child and $5 per week toward the public assistance child support obligation. Approximately one year after the commencement of child support, it was determined that Archie L. Atkins was then in contempt due to his failure to make the payments previously ordered on April 8, 1985. Specifically, he was $897.78 behind through March 21, 1986. Mr. Atkins was ordered to pay $897.78 instantly plus $250 to be applied toward the public assistance child support obligation. (Copies attached) Mr. Atkins paid both the $897.78 and the $250 as ordered by the Court. At the same time the Court entered its Contempt Order, the Court directed that future payments be deducted from Mr. Atkins' pay check by his employer, the United States Postal Service. Archie Atkins and his wife, Richardine Atkins, overpaid their 1985 Federal Income taxes in the amount of $1,605.21 and were entitled to a refund in that amount. However, the Office of Child Support Enforcement sought to intercept that tax refund and to apply it toward the public assistance child support obligation. Mr. Atkins was notified of the interception on June 2, 1986, and requested a hearing on June 19, 1986.
Recommendation For the foregoing reasons it is recommended that the Department of Health and Rehabilitative Services enter a Final Order in this case to the effect that the Department is not entitled to intercept Archie L. Atkins' federal tax refund unless and until Atkins is delinquent in the periodic court-ordered payment, and to the further effect that any federal tax refund which may already have been intercepted shall be returned to Atkins. DONE AND ENTERED this 4th day of November, 1986, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 1986. COPIES FURNISHED: R. Craig Hemphill, Esquire Assistant Counsel Child Support Enforcement Program 105 East Monroe Street Jacksonville, Florida 32202 Daniel Richardson, Esquire 1004 First Union Building Jacksonville, Florida 32202 William Page, Jr., Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
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.
Findings Of Fact 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. Petitioner did not make each bi-weekly child support payment as they became due, beginning October 2, 1997. 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. 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." 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. 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. 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. 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.
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
The Issue The issues for determination are: (1) whether Petitioner is delinquent in child support payments; and (2) whether Respondent is authorized to levy Petitioner's two bank accounts and apply the funds to reduce Petitioner's past due child support obligation.
Findings Of Fact Based on the evidence and testimony of the witnesses presented and the entire record in this proceeding, the following Findings of Fact are made: Petitioner is the father of a child born in Connecticut in 1986. On May 2, 1990, a Connecticut court ordered Petitioner to pay child support of $72.00 per week for the support of his child. The court also found that Petitioner had a child support arrearage of $3,797.11 and ordered that he pay an additional $15.00 per week to reduce the arrearage. Petitioner moved to Florida in early 1994. On November 13, 2001, the Clerk of the Circuit Court of Manatee County, Florida, received a request from the State of Connecticut to register and enforce a foreign support order against Petitioner. The adjudicated arrearage in child support was $25,179.87, as determined by the State of Connecticut. On December 11, 2001, Petitioner was sent a Notice of Registration of Foreign Support Order. The notice, sent by certified mail, was received at Petitioner's then current residence address. On January 23, 2002, an Order Confirming Registration of Foreign Support Order was entered; Petitioner was ordered to pay $90.48 per week beginning January 25, 2002. On July 12, 2007, the State of Connecticut certified that as of July 12, 2007, Petitioner had a $23,853.56 child support arrearage. Petitioner stipulated that the child support arrearage was at least $23,000.00. On September 8, 2006, the Department sent a Notice to Freeze to the Bank of America; on the same day a Notice of Freeze was sent to Regions Bank. In the notices, sent by certified mail, the Department advised the banks to hold up to $25,725.26 of Petitioner's funds until further notice. Bank of America responded indicating that Petitioner had $1,270.95 in his account; Regions Bank reported $591.42. On September 15, 2006, the Department sent two Notices of Intent to Levy by certified mail to Petitioner. The notices provided, in pertinent part, the following: You are hereby notified that pursuant to Section 409.25656, Florida Statutes, the Department of Revenue intends to levy on credits or personal property belonging to the obligor named above [Petitioner], or debts owed to the obligor. This property consists of liquid assets and is in the control of [appropriate bank]. This action is taken for nonpayment of child support by the obligor in the amount of $25,725.26 as of [appropriate date]. You are hereby notified that you may contest the agency's action to levy on the above referenced property. You may do so by either filing a petition in the existing Circuit Court case, . . . or by requesting an administrative hearing. If you wish to request an administrative hearing, you must file your petition for hearing, in writing, in accordance with the Notice of Rights attached to this Notice. Although Petitioner testified that he did not receive the notices, neither was returned by the postal service. On October 2, 2006, Petitioner filed a Petition for Administrative Hearing (Petition), in response to each Notice of Intent to Levy. In October 2006, the Department issued and sent Notices of Extension of Freeze to each bank indicating that Petitioner was challenging the Notices of Intent to Levy. The monies on deposit in each bank were the result of payments received by Petitioner for his labors as a lawn caretaker.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Revenue, enter a final order that: (1) levies an amount up to $23,853.56 in each of the Petitioner, Michael K. Dugdale's, two bank accounts at Bank of America, N.A. and Regions Bank; (2) applies the funds to reduce Petitioner's past due child support obligation; and (3) credits Petitioner for said payment. DONE AND ENTERED this 18th day of October, 2007, in Tallahassee, Leon County, Florida. S JEFF B. CLARK 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 18th day of October, 2007.
Findings Of Fact On September 13, 1985, respondent, Bernard Gross, was found in contempt of the Circuit Court in and for Dade County, Florida, for failing to comply with previous orders of the court to provide child support. According to the order rendered by the court, Gross was in arrears in the amount of $4,650 as of September 4, 1985. A copy of the order has been received into evidence as petitioner's exhibit 2. By letter dated October 24, 1985 petitioner, Department of Health and Rehabilitative Services (HRS), through its contractor, the Office of the State Attorney, advised Gross that it intended to intercept his federal income tax refund, if any, to satisfy the past-due child support. According to the letter, the past due amount was then $4,425. Gross was further advised he could request an administrative hearing to contest this action no later than November 25, 1985. However, the agency's letter was not postmarked until November 26, 1985, or after the point of entry had expired, and was not received by Gross until December 6, 1985. The letter further erroneously identified the amount due as an "AFDC" claim, which meant the person due the support payments was receiving assistance under the federal Aid to Families with Dependent Children program. This was incorrect. Gross was given an informal meeting with HRS personnel on January 29, 1986, for an undisclosed purpose. However, later HRS correspondence implies it was for the purpose of allowing Gross to attempt to get HRS to reconsider its earlier decision to intercept his income tax refund. When this effort was apparently unsuccessful, HRS, through its contractor, issued a Notice of Right to Hearing in Non-AFDC Cases on March 3, 1986, offering Gross an opportunity for a formal hearing. The notice made reference to the earlier court order dated September 13, 1985, and stated the arrearage due was greater than $500, the support was owed to or on behalf of a minor child, and it was more than three months past due. Gross thereafter timely requested a formal hearing. The clerk of the Circuit Court in and for Dade County maintains a central depository which has an account history for each person paying child and spousal support. According to the computer printout on Gross' account, Gross owed $4,650 as of September 4, 1985, but it decreased to $4,255 as of December 25, 1985. The amount is subject to change each week since the printout indicates Gross must pay $85 per week in child support. The printout has been received into evidence as petitioner's exhibit 1. Gross did not challenge or contest the accuracy of the numbers contained in the document. At final hearing petitioner ore tenus amended its request to claim only $4,255. That amount is the last amount shown on Gross' payment record, and is the balance due as of December 25, 1985. This date was selected by petitioner's counsel since it represents the most current data on respondent's account. Gross' former wife confirmed that Gross owed her more than $4,000 as of the end of 1985, but could not state the precise amount owed. Federal regulations (45 CFR 303.72) govern the conditions under which a federal income tax refund may be intercepted in a non-AFDC case to offset past- due support owed by the taxpayer. As is pertinent here, they require that the taxpayer owe support to or on behalf of a minor child and that it be not less than $500. Regulations also require that the agency substantiate the delinquent amount with a copy of the "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," "a copy of the payment record," or if no payment record exists, "an affidavit signed by the custodial parent attesting to the amount of support owed." In this regard, petitioner tendered into evidence a copy of the September 13, 1985 court order, a certified copy of the clerk of the circuit court's payment record, and offered the testimony of Gross' former wife, the latter in an effort to establish the amount owed her as of the end of 1985. Through his own testimony, and the submission of respondent's composite exhibit 1, Gross contended that various errors occurred in the administrative process that culminated in the final hearing. First, he cited the agency's failure to send its October 24, 1985 letter until November 26, or after the original point of entry had expired. He also pointed out that this notice was dated only fifty days after the court order, and that a minimum of ninety days is required by law. He further contended he had no opportunity prior to hearing to question the amount of past-due support allegedly owed. Finally, he pointed out that the court order of September 13 refers to an arrearage of $4,650, the proposed agency action on March 3 relies upon an arrearage of $4,450, and at hearing petitioner claimed the past due amount was $4,255. He did not deny that he owed the above amounts, but contended the agency was bound to seek only the amount shown in the court order, and by later changing the amount allegedly due, HRS has invalidated its claim.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered certifying a claim to the Secretary of the Treasury in the amount of $4,255 against respondent's federal income tax refund, if any. DONE and ORDERED this 23rd day of October 1986 in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 23rd day of October 1986.
Findings Of Fact The marriage of Ronald Yelvington and Marsha Yelvington was dissolved some time prior to this proceeding. The couple had four children. On December 3, 1982, Ronald Yelvington executed a stipulation to repay arrearages of court-ordered child support due to the State of Florida in the amount of $4,542.00. Repayment was to be made at the rate of $5.00 per week. The stipulation acknowledged the four children and acknowledged that they had received public assistance from November 1, 1978 until October 31, 1981. The Department joined in the stipulation. (Petitioner's Exhibit #2) On February 18, 1983, Circuit Judge E. L. Eastmore entered an order to repay debt and arrears, adopting the terms of the parties' stipulation. Payments were to be made to the Clerk of the Circuit Court and disbursed by the Clerk to the Department, as reimbursement for public assistance paid for the benefit of Yelvington's minor children. (Petitioner's Exhibit #2) Ronald Yelvington has paid regularly, by payroll deduction. As of May 18, 1988, his balance due on the arrearages account was $3,286.70, including an additional arrearage of $119.70. (Petitioner's Exhibit #1) Until this proceeding, Mr. Yelvington was unaware that he was accruing an additional arrearage. He attributes the arrearage to the fact that his company changed to a bimonthly pay period. His current spouse, Carol Yelvington, called HRS and Lew Merryday's office to let them know that the pay period was different. They told her they would let the Yelvingtons know if there was a problem. The next contact was the notice of IRS intercept. HRS has a policy of pursuing IRS intercept even when the party is paying regularly under a stipulation regarding an arrearage, if the funds are available in a tax refund. Linda Bailey, the child Support Enforcement Supervisor, does not know how much is available in Mr. Yelvington's tax refund. She concedes that the policy causes confusion and resentment in a party who is making regular payments. Ronald Yelvington agrees that he owes the arrearage, although he does not understand the basis for the additional $119.70, or why no one informed him that he was getting behind for insufficient payroll deductions. He believes that intercept might be a speedy resolution, but he distrusts the figures stated by HRS. His former and current spouses vehemently object to the intercept, as they feel that the money would otherwise go to them and their children. Neither argues that the refund is partly theirs by virtue of having filed a joint tax return as a wage earner. HRS does not maintain an accounting of payments made under the child support enforcement program. It relies instead on the accounting provided by the Clerk of the Circuit Court, as it is the Clerk's office that is responsible for receiving and disbursing the funds.
Recommendation Based on the foregoing, it is, hereby RECOMMENDED: That a Final Order be entered finding that the Department should notify the Secretary of Treasury as provided in Title 42, U.S. Code, Section 644(a)(1), that Ronald Yelvington owes past-due support in an amount to be established at the time the notice is provided. That is, the sum of $3,286.70, owed as of May 18, 1988, should be reduced by those amounts paid by Mr. Yelvington since that date. It is further recommended that Ronald Yelvington be provided a copy of the Clerk of Circuit Court accounting of his payments on the arrearage established by Judge Eastmore's February 18, 1983 Order. DONE and RECOMMENDED this 13th day of June, 1988, in Tallahassee, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 1988. COPIES FURNISHED: Lew Merryday, Jr., Esquire 425 North Palm Avenue Palatka, Florida 32077 Ronald M. Yelvington 5417 Coyote Trail Orlando, Florida 32308 Sam Power, HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Suite 407 Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Ms. Marsha Yelvington Martin 5834 Windermere Drive Jacksonville, Florida 32211 Marsha Yelvington Post Office Box 608 Pierson, Florida 32080
