The Issue The issues in this proceeding are: What is the amount of child support arrearages and/or past-due support presently owed by Petitioner? Whether the Department of Revenue, Child Support Enforcement Program is authorized to employ the remedy of garnishment as set forth in Section 409.25656, Florida Statutes.
Findings Of Fact Stipulated Facts On January 29, 1982, a Final Judgment was issued in the case of Linda Tillman v. Robert C. Tillman, Case No. 81-20402, in the Circuit Court of the Seventeenth Judicial Circuit in and for Broward County, Florida (Broward County Circuit Court). Pursuant to this Final Judgment, Petitioner, Robert C. Tillman, was ordered to pay $103.00 per week in current child support commencing January 22, 1982, for three minor children. On June 12, 1985, the Broward County Circuit Court issued an Order to Transfer in Linda Tillman v. Robert C. Tillman, Case No. 81-20402, to Palm Beach County, Florida. On August 18, 1987, an Order Granting Respondent's Motion for a Decrease in Child Support was filed in the case of Linda Tillman and the Department of Health and Rehabilitative Services v. Robert Tillman, (hereinafter Tillman v. Tillman) Case No. 85-5064, in the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County (Palm Beach County Circuit Court), under which Petitioner's current child support obligation was reduced to $65.00 per week because one of the parties' children had come to live with Petitioner. Additionally, child support arrearages of $4,121.64 were established and Petitioner was ordered to pay an additional $10.00 per week in liquidation of the arrearages. On July 20, 1990, an Order Adjudicating Respondent in Contempt was filed in the Palm Beach Circuit Court in Tillman v. Tillman, under which Petitioner was found in civil contempt of court for willfully failing to satisfy his child support obligations. Petitioner's child support arrearages were determined to be $3,935.42 as of May 10, 1990, and he was ordered to continue to pay $65.00 per week in current child support and increased arrearages payments of $15.00 per week. On March 11, 1993, an Order Adjudicating Respondent in Contempt was filed in the Palm Beach Circuit Court in Tillman v. Tillman under which Petitioner again was found in civil contempt of court for willfully failing to satisfy his child support obligations. Petitioner's child support arrearages were determined to be $5,102.59 as of February 18, 1993, and he was ordered to continue to pay $65.00 per week in current child support, increased arrearages payments of $35.00 per week, and $500.00 as a partial lump-sum payment on arrearages to purge his contempt. On November 6, 1995, an Order Adjudicating Respondent in Contempt was filed in the Palm Beach Circuit Court in Tillman v. Tillman under which Petitioner again was found in civil contempt of court for willfully failing to satisfy his child support obligations. Petitioner's child support arrearages were determined to be $8,298.93 as of October 17, 1995. He was ordered to continue to pay $65.00 per week in current child support and $10.00 per week plus a $150.00 lump-sum payment on arrearages to purge his contempt. On March 19, 1996, an Order Adjudicating Respondent in Contempt was filed in the Palm Beach Circuit Court in Tillman v. Tillman under which Petitioner again was found in civil contempt of court for willfully failing to satisfy his child support obligations. Petitioner's child support arrearages were determined to be $8,829.74 as of May 25, 1995. He was ordered to continue to pay $65.00 per week in current child support and $20.00 per week plus a $500.00 partial lump-sum payment on arrearages to purge his contempt. On August 8, 2001, the Department mailed a Notice of Freeze (NOF) in an amount up to $2,254.96 to the South Atlantic Federal Credit Union in Boca Raton, Florida, by certified mail, return receipt requested, regarding any accounts of Petitioner. The credit union received the NOF on August 10, 2001. On August 15, 2001, the Department mailed a Notice of Intent to Levy (NOIL) in an amount up to $2,254.96 to Petitioner by certified mail, return receipt requested. Petitioner received the NOIL on August 18, 2001. The NOF and NOIL mailed by the Department satisfied the statutory notice requirements of Section 409.25656, Florida Statutes. Petitioner filed a Request for Administrative Hearing dated August 30, 2001, which was received by the Department on September 18, 2001. The Department sent a Notice of Extension of Freeze (NOEOF) in an amount of up to $2,254.96 to South Atlantic Federal Credit Union on September 12, 2001. The Department dismissed Petitioner's August 30, 2001, Request for Administrative Hearing as legally insufficient. Petitioner filed a timely and legally sufficient Revised Petition for Hearing dated January 7, 2002, which was received by the Department on January 16, 2002. On June 10, 2002, a Recommendation of Hearing Officer and an Order Granting Motion to Correct Ledger and to Determine Arrears were filed in the Palm Beach Circuit Court in Tillman v. Tillman, under which Petitioner's child support arrearages were determined to be $6,344.12, all of which was past due as of May 15, 2002. Petitioner was ordered to pay $50.00 per month in liquidation of his arrearages. The official payment records of the Palm Beach County Clerk of Court established that Petitioner owed child support arrearages/past-due child support in Tillman v. Tillman of $6,194.12 as of November 25, 2002. The Department faxed and mailed by certified mail, return receipt requested, an Amended Notice of Freeze (Amended NOF) in an amount up to $6,094.12 to South Atlantic Federal Credit Union on October 16, 2002. The credit union received the Amended NOF on October 18, 2002. The Department faxed an Amended NOIL to Petitioner in an amount up to $6,094.12 on October 18, 2002, and mailed a copy to Petitioner on October 19, 2002.2/ The Department faxed and mailed an Amended Notice of Extension of Freeze (Amended NOEOF) in an amount up to $6,094.12 to South Atlantic Federal Credit Union on December 20, 2002. Facts Based Upon the Evidence of Record Petitioner made five timely monthly payments of $50.00 in Tillman v. Tillman between May 15, 2002, and November 25, 2002. Petitioner made two more timely monthly payments of $50.00 between November 25, 2002 and January 17, 2003, reducing the amount he owed in child support arrearages/past-due in Tillman v. Tillman to $6,094.12 as of January 17, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Revenue, Child Support Enforcement Program enter a final order that levies upon the funds in the Petitioner's credit union account up to the amount of $6,094.12; applies the funds to reduce Petitioner's accrued child support arrearage; and credits Petitioner for the amount so applied. DONE AND ENTERED this 27th day of February, 2003, in Tallahassee, Leon County, Florida. BARBARA J. STAROS 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 27th day of February, 2003.
The Issue Whether the Petitioners are entitled to participate in the Florida Retirement System (FRS).
Findings Of Fact The Respondent, Department of Management Services, Division of Retirement (Respondent or Department), is the state agency charged with the responsibility of administering the FRS. Accordingly, the Respondent must resolve as part of its normal course of duties whether or not individuals are eligible to participate in the FRS. The Petitioner, Eric Eggen, is an attorney authorized by the Florida Bar to practice law within the State of Florida. Mr. Eggen has practiced law since 1974. On March 15, 1991, Mr. Eggen was appointed by the Chief Judge of the First Circuit to serve as a "part time Child Support Hearing Officer." Mr. Eggen was directed to perform such duties as part of a program that coordinates the enforcement of child support. Although Florida's First Circuit encompasses more than two counties, the vast majority of Mr. Eggen's work has been performed for and funded primarily by Escambia County and Santa Rosa County. The child support program pertinent to these cases is a federally funded program that channels monies from the federal government to local governments through the State Department of Revenue. Local governments are required to "match" a certain percentage in order to receive the federal funds. In these cases, the First Circuit (when the program was initiated) decided to use non-Article V hearing officers to perform the work. This process had been approved by the Florida Supreme Court and allows the judges of the First Circuit more time to perform their other responsibilities. Accordingly, for reasons not fully set forth in this record, Mr. Eggen was selected to be the hearing officer for the First Circuit child support enforcement program. How or by whom Mr. Eggen would be compensated for his efforts was not set forth by any written document. He was simply designated by the Chief Judge to be the person who would do the work. The work consisted of conducting child support hearings to determine whether child support was owed, whether someone had the ability to pay child support, and whether someone might be willfully refusing to pay child support. Issues such as paternity required an Article V judge. Mr. Eggen was not authorized to make such determinations. Initially the work was considered part-time, but as the volume of cases increased over time Mr. Eggen's ability to perform other legal work diminished. He maintains that the child support enforcement work now consumes his full-time schedule. Exactly when Mr. Eggen went to full-time work as a hearing officer was not proved. The contracts governing how monies are treated by Escambia County and Santa Rosa County do not include any specification regarding the Petitioners by name. Presumably any individual performing Mr. Eggen's duties would be entitled to the compensation he receives for the work performed. In fact, when Mr. Eggen substitutes for another hearing officer he is similarly compensated. Mr. Eggen does not have a permanent office within the court facilities, does not receive office supplies through the court or county facilities, and does not have sick leave or annual leave through any agency. When Mr. Eggen performs the work, he is paid by submitting invoices to the counties for whom the work is performed. Neither the First Circuit, the Court Administrator's Office, nor the Department of Revenue pays Mr. Eggen directly for the work performed. In remitting funds to Mr. Eggen the counties do not deduct social security, withholding, or any other amount such as medical insurance costs. There is no evidence that Mr. Eggen receives any benefits such as medical insurance, dental insurance, or deferred compensation through any entity. Further, there is no evidence that those types of benefits were made available to Mr. Eggen but declined by him. Typically those types of benefits are available to full- time state employees. At all times prior to the initiation of these cases, the Petitioner Eggen held himself out as "self-employed." Mr. Eggen's work as a hearing officer did not preclude him from representing private clients on matters not in conflict with his role as the child support enforcement hearing officer. The extent of Mr. Eggen's private practice before the volume of child support enforcement hearings caused him to work full-time as a hearing officer is not proved. Whether or not he could perform other legal work at this time is also unknown. The Petitioner Munro is a full-time employee of Mr. Eggen. She is paid a salary and receives a W-2 from Mr. Eggen. Her services to the child support enforcement program are billed to the counties at a daily rate as "clerical assistance." Mrs. Munro designates herself as a "judicial assistant." Mr. Eggen uses monies from the paid county invoices to partially fund Mrs. Munro's monthly wage. Mrs. Munro was hired by Mr. Eggen in approximately 1975. No one from the counties, the Court Administrator's Office, or the Judges of the First Circuit had any input to Mr. Eggen's selection of Mrs. Munro. No one from those entities can fire Mrs. Munro, discipline her, reward her, or pay her. Her sole source of remuneration flows through Mr. Eggen. How Mrs. Munro accounts for her work time to Mr. Eggen was not proved. Neither Mr. Eggen nor Mrs. Munro is required to account for time spent on child support cases to the Court Administrator's Office, the Judges of the First Circuit, or the Department of Revenue. The Petitioners Eggen and Mrs. Munro set the hearing schedule for the child support cases, coordinate the hearings with court space available to conduct the cases, and complete the paperwork associated with the cases at their own designated pace. No one instructs Mr. Eggen as to when he must work, how he must work, or whether he must work. If Mr. Eggen chose not to work, he would not be paid. The completion of the work drives the payments. No work and no invoice to counties would lead to no compensation to Mr. Eggen. Whether Mrs. Munro would be paid by Mr. Eggen under those circumstances was not proved. Neither Petitioner is identified or specified as an employee of the Court Administrator's Office. Neither Petitioner is identified or specified as an employee of the First Circuit. Neither Petitioner is identified or specified as an employee of the Department of Revenue. Neither Petitioner holds a position or job classification that has been identified, specified, or funded by the Florida Legislature. Prior to the initiation of this action, neither Petitioner had ever publicly claimed to be a "state employee." There is no evidence that either Petitioner received a statement of benefits accrued from any state entity setting forth the Petitioners' entitlements or declined benefits. Whether or not any entity pays workers' compensation, leave, or insurance benefits for the Petitioners was not proved. There is no evidence that any state, court or county agency does so. The Court Administrator of the First Circuit is a state agency as contemplated by Chapter 121, Florida Statutes. When the Petitioners first believed they were entitled to benefits as an "officer" or "state employees" was not proved. Clearly, the first claim for FRS entitlement was not filed until 2001, some ten years after Mr. Eggen had been designated to do the work as a child support enforcement hearing officer. Other child support enforcement hearing officers who are considered "state employees" for purposes of working through the Court Administrator's Office are designated "OPS." As such, those employees are not eligible to participate in the FRS nor do they receive other benefits afforded to state employees.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, issue a Final Order denying eligibility to these Petitioners. DONE AND ENTERED this 1st day of April 2004, in Tallahassee, Leon County, Florida. S J. D. Parrish 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 April, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Division of Retirement Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-1560 Thomas E. Wright, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 George R. Mead, II, Esquire Moore, Hill & Westmoreland, P.A. SunTrust Tower, Ninth Floor 220 West Garden Street Pensacola, Florida 32501
