00-004074 Gary Walther vs. Department Of Revenue, Child Support Enforcement Program Status: Closed Recommended Order on Tuesday, March 6, 2001.

Summary: The Department is authorized to levy funds in Petitioner`s bank accounts and apply said funds to reduce his child support arrearage.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GARY WALTHER, )

)

Petitioner, )

)

vs. ) Case No. 00-4074

)

DEPARTMENT OF REVENUE, CHILD )

SUPPORT ENFORCEMENT PROGRAM, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

before Carolyn S. Holifield, Administrative Law Judge, Division

of Administrative Hearings, on February 2, 2001. The hearing

was conducted by videoconferencing between Orlando and

Tallahassee, Florida.

APPEARANCES

For Petitioner : No appearance

For Respondent : Albert Thorburn, Esquire

Department of Revenue

Post Office Box 8030

4070 Esplanade Way

Tallahassee, Florida 32314-8030

STATEMENT OF THE ISSUES

The issues for determination are: (1) whether Petitioner is

delinquent in child support payments; (2) if yes, what is the

amount of the delinquent child support; and (3) whether

Respondent is authorized to levy Petitioner’s two bank accounts

at the Bank of America and apply the funds to reduce or satisfy

Petitioner’s outstanding arrearage for child support.

PRELIMINARY STATEMENT

On or about October 15, 1999, Respondent, the Department of

Revenue, Child Support Enforcement Program (Department), sent a

Notice of Intent to Levy to Petitioner, Gary Walther

(Petitioner). In the notice, the Department advised Petitioner

that it intended to levy on Petitioner’s personal property, in

the form of liquid assets, in the control of the Bank of

America. According to the notice, the proposed action was being

taken because of Petitioner’s failure to pay child support in

the amount of $10,717.29. Petitioner challenged the

Department’s intended action and requested an administrative

hearing. On or about September 28, 2000, the Department

referred the matter to the Division of Administrative Hearings

to conduct the hearing.

Pursuant to Amended Notice of Hearing (Amended Notice)

issued on November 15, 2000, the final hearing in this case was

initially set for December 15, 2000. The hearing convened at

the time and place designated in the Amended Notice but was

continued after Petitioner failed to appear, and the undersigned

determined that Petitioner likely did not receive the Amended

Notice. The Order Continuing Final Hearing was issued on

December 18, 2000. Subsequently, the final hearing was reset

for February 2, 2001, pursuant to the Amended Notice of Video

Hearing issued on January 16, 2001. The hearing convened as

noticed in the Amended Notice of Video Hearing. The

Department's counsel and witnesses, and the undersigned were

present for the final hearing, but Petitioner did not appear.

At the final hearing, Respondent presented the testimony of

two witnesses, Timothy Morris and Alicia Weglinski, employees of

the Department. Respondent offered and had eight exhibits

received into evidence. No testimony or evidence was presented

on behalf of Petitioner.

The proceeding was recorded, but was not transcribed. At

the conclusion of the hearing, the time for filing proposed

recommended orders was set for ten days after the hearing.

Petitioner did not file a proposed recommended order.

Respondent timely filed a Proposed Recommended Order which has

been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. On April 11, 1996, a judicial hearing officer in the

Circuit Court of the Ninth Judicial Circuit, in and for Orange

County, Florida (Orange County Circuit Court), issued a Report

and Recommendation of Hearing Officer on Paternity and/or Other

Issues (Report). The Report found that Petitioner, Gary Walther

(Petitioner ), was the natural father of two minor children and

recommended that he pay $200.00 per month for each child. The

Report also recommended that the child support payments commence

on May 5, 1996, and that they be made through the Clerk of the

Circuit Court.

2. On April 11, 1996, the Orange County Circuit Court

issued an Income Deduction Order (Order) in State of Florida,

Department of Revenue, on behalf of Theresa Walther v. Gary

Walther , Case No. 86-1675. The Order directed any employer or

any other person providing or administering income to Petitioner

to deduct from such income $400.00 per month for periodic child

support and to pay this amount to the Clerk of the Court.

According to the Order, the $400.00 "reflects on-going child

support of $200.00 per month, per child, for two minor

children."

3. On May 15, 2000, a judicial hearing officer issued a

Report and Recommendation in Department of Revenue v. Gary

Walther , Case No. 86-1675, in the Orange County Circuit Court.

The Report and Recommendation abated Petitioner’s on-going child

support payments as of April 24, 2000; found Petitioner

$10,468.76 in arrears in child support as of April 24, 2000; and

recommended that Petitioner pay an additional payment of $200.00

per month as payment on the arrears. These payments were to be

made to the State of Florida, State Disbursement Unit, in

Tallahassee, Florida.

4. On May 15, 2000, the Orange County Circuit Court

approved, confirmed and adopted as a Final Order the Report and

Recommendation described and referred to in paragraph 3 above.

5. On October 13, 1999, the Department sent a Notice to

Freeze to the Bank of America in Richmond, Virginia. In the

notice, which was sent by certified mail, the Department advised

the Bank of America that Petitioner had a past due and/or

overdue child-support obligation of $10,717.29 as of October 13,

1999. Moreover, the Department directed the bank not to

transfer, dispose of, or return any credits, debts, or other

personal property owned by or owed to Petitioner.

6. On October 25, 1999, the Bank of America verified that

it held two accounts identified as belonging to Petitioner. The

funds in both accounts totaled $2,894.56.

7. On October 15, 1999, the Department sent a Notice of

Intent to Levy by certified mail to Petitioner. That notice

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. The property

consists of liquid assets and is in the

control of BANK OF AMERICA.

This action is taken for nonpayment of child

support by the obligor in the amount of

$10,717.29 as of October 13, 1999.

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 an action in Circuit Court or

by requesting an administrative hearing. If

you wish to request an administrative

hearing, you must file your petition for

hearing, in writing, accordance with the

Notice of Rights attached to this Notice.

If you elect to file an action in Circuit

Court, your complaint must be filed with the

Clerk of Court within twenty-one (21) days

of your receipt of this notice. . . .

You may NOT request both an administrative

hearing and a hearing in circuit court.

Attached to the notice was a Notice of Rights form that detailed

Petitioner's due process rights as provided for in Section

409.25656, Florida Statutes.

8. The return receipt from the October 15, 1999, Notice of

Intent addressed to Petitioner indicated that the Notice was

delivered and received by someone at Petitioner’s address of

record on or about October 20, 1999.

9. On or about November 3, 1999, Petitioner filed a

Petition for Formal Hearing (Petition), which requested a

"formal hearing concerning the Notice of Intent to Levy" which

he received October 19, 1999. The Petition listed Petitioner’s

address as 234 Crabtree Avenue, Orlando, Florida 32835.

10. On or about November 10, 1999, the Department issued

and sent a Notice of Extension of Freeze to the Bank of America.

The notice advised the bank that Petitioner had "filed an action

in the circuit court or under Chapter 120, Florida Statutes, to

contest the Department of Revenue’s intention to levy upon

assets as specified in the Notice of Freeze." The Department

further directed the Bank of America not to transfer, dispose,

or return any credits, debts or other personal property

owned/controlled by Petitioner and in the bank’s possession and

control. Finally, the Notice of Extension of Freeze stated that

the Notice remained effective "until final resolution of the

circuit court or Chapter 120 action, and the Department issued a

Notice of Levy or a Notice of Full or Partial Release of

Freeze."

11. On November 30, 2000, the Clerk of the Orange County

Circuit Court prepared and issued an Arrearage Affidavit in

Case No. 86-1675. The affidavit stated that the May 15, 2000, a

Final Order issued by the court established that Petitioner's

child support arrearage was $10,468.76. However, because of

payments made by Petitioner, the affidavit noted that

Petitioner's remaining established arrearage, as of the date of

the affidavit, was $6,924.01.

12. As of the date of the final hearing, Petitioner's

outstanding arrearage for child support was $6,924.01.

13. Notwithstanding his filing a Petition for Formal

Hearing, Petitioner failed to appear at the hearing and no

evidence was presented on his behalf.

CONCLUSIONS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

15. The Department is the state agency responsible for the

administration of the Child Support Enforcement Program.

Subsection 409.2557(1), Florida Statutes.

16. Subsection 409.2557(2), Florida Statutes, provides in

pertinent part the following:

(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 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.

17. The burden of proof, absent a statutory directive t o

the contrary, is on the party asserting the affirmative of the

issue in the proceeding. Department of Transportation v. J.W.C.

Company, Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981) ; Balino v.

Department of Health and Rehabilitative Services , 348 So. 2d 349

(Fla. 1st DCA 1977). In this proceeding, the Department seeks

to levy the overdue child support from Petitioner's bank

accounts. Therefore, to prevail in this proceeding, the

Department must establish by a preponderance of evidence the

alleged facts necessary to show that the proposed levy is

authorized.

18. Section 409.25656, Florida Statutes, provides in

pertinent part the following:

Garnishment .–

(1 ) If a person has a child support

obligation which is subject to enforcement

by the department as the state Title IV-D

program, the executive director or his or

her designee may give notice of past due

and/or overdue support by registered mail to

all persons who have in their possession or

under their control any credits or personal

property, including wages, belonging to the

child support obligor, or owing any debts to

the child support obligor at the time of

receipt by them of such notice. Thereafter,

any person who has been notified may not

transfer or make any other disposition, up

to the amount provided for in the notice, of

such credits, other personal property, or

debts until the executive director or his or

her designee consents to a transfer or

disposition, or until 60 days after the

receipt of such notice. If the obligor

contests the intended levy in the circuit

court or under chapter 120, the notice under

this section shall remain in effect until

final disposition of that circuit court or

chapter 120 action. Any financial

institution receiving such notice will

maintain a right of setoff for any

transaction involving a debit card occurring

on or before the date of receipt of such

notice.

(2 ) Each person who is notified under

this section must, within 5 days after

receipt of the notice, advise the executive

director or his or her designee of the

credits, other personal property, or debts

in their possession, under their control, or

owed by them and must advise the executive

director or designee within 5 days of coming

into possession or control of any subsequent

credits, personal property, or debts owed

during the time prescribed by the notice.

Any such person coming into possession or

control of such subsequent credits, personal

property, or debts shall not transfer or

dispose of them during the time prescribed

by the notice or until the department

consents to a transfer.

(3 ) During the last 30 days of the 60-day

period set forth in subsection (1), the

executive director or his or her designee

may levy upon such credits, personal

property, or debts. The levy must be

accomplished by delivery of a notice of levy

by registered mail, upon receipt of which

the person possessing the credits, other

personal property, or debts shall transfer

them to the department or pay to the

department the amount owed to the obligor.

* * *

(7)(a ) Levy may be made under subsection

(3) upon credits, other personal property,

or debt of any person with respect to any

past due or overdue child support obligation

only after the executive director or his or

her designee has notified such person in

writing of the intention to make such levy.

(b ) Not less than 30 days before the day

of the levy, the notice of intent to levy

required under paragraph (a) must be given

in person or sent by certified or registered

mail to the person's last known address.

(c ) The notice required in paragraph (a)

must include a brief statement that sets

forth:

1. The provisions of this section

relating to levy and sale of property ;

2. The procedures applicable to the levy

under this section;

3. The administrative and judicial

appeals available to the obligor with

respect to such levy and sale, and the

procedures relating to such appeals; and

4. The alternatives, if any, available to

the obligor which could prevent levy on the

property.

* * *

(8 ) An obligor may contest the notice of

intent to levy provided for under subsection

(7) by filing an action in circuit court.

Alternatively, the obligor may file a

petition under the applicable provisions of

chapter 120. After an action has been

initiated under chapter 120 to contest the

notice of intent to levy, an action relating

to the same levy may not be filed by the

obligor in circuit court, and judicial

review is exclusively limited to appellate

review pursuant to s. 120.68. Also, after

an action has been initiated in circuit

court, an action may not be brought under

chapter 120.

19. The above-quoted provisions enumerate the

prerequisites that must be met prior to the Department's levying

upon a person's credits, personal property, or debts. First,

the Department must determine that the person has a child-

support obligation which is subject to enforcement by the

Department. If the Department establishes that the person has a

past due or overdue child-support obligation that is subject to

enforcement by the Department, it must next be demonstrated that

there has been compliance with the notice requirements

enumerated in Section 409.25656, Florida Statutes.

20. Prior to levying upon the credits, personal property,

or debts of any child-support obligor, the Department is

required to give notice by registered mail to all persons known

to have in their possession or under their control any credits

or personal property belonging to the obligor or owing any debts

to that obligor of its intent to levy. The notice should direct

such person not to transfer or dispose of the credits, personal

property, or debts until the Department consents to a transfer

or disposition or until 60 days after receipt of the notice.

Subsection 409.25656(1), Florida Statutes. Next, persons who

receive the foregoing notice are required to advise the

Department of credits or other personal property owned by the

obligor, or debts owed by them to the obligor, that are in their

possession or under their control. Subsection 409.25656(2),

Florida Statutes. Finally, prior to the Department's levying

upon credits, other personal property, or debts of a child-

support obligor, it must provide notice to the obligor that

comports with the requirements of Subsection 409.25656(7),

Florida Statutes.

21. The ev idence established that Petitioner had a past

due or overdue child-support obligation that was subject to

enforcement by the Department. Further, it was undisputed that

Petitioner's past due or overdue child-support obligation, as of

November 30, 2000, was $6,924.01.

22. The evidence established that the Department gave the

statutorily mandated notice to the financial institution, Bank

of America, that had personal property owned by Petitioner in

its possession and under its control. Additionally, the

undisputed evidence showed that at the time the Bank of America

received the Notice of Freeze, it had in its possession and

under its control, personal property owned or controlled by

Petitioner. This personal property was in the form of liquid

assets, specifically, funds in two accounts totaling $2,894.56.

23. Finally, the evidence established that the Department

issued to Petitioner a Notice of Intent to Levy which (1)

notified Petitioner that the Department intended to levy upon

his personal property, liquid assets, in the control of the Bank

of America; (2) stated that the action was being taken for

Petitioner's nonpayment of child support; and (3) advised

Petitioner of his due process rights. This notice provided to

Petitioner by the Department fully complied with the

requirements of Subsection 409.25656 (7), Florida Statutes.

24. In light of the foregoing conclusions, the Department

has met its burden of proof in this proceeding. Therefore, the

Department is authorized to levy on Petitioner's two

aforementioned bank accounts totaling $2,894.56, and to apply

those funds to his accrued child support arrearage.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Department of Revenue enter a final

order that (1) levies the $2,894.56 in the Petitioner's two bank

accounts at the Bank of America; (2) applies the funds to reduce

Petitioner's accrued child support arrearage of $6,924.01; and

(3) credits Petitioner for said payment.

DONE AND ENTERED this 6th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CAROLYN S. HOLIFIELD

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of March, 2001.

COPIES FURNISHED :

Albert Thorburn, Esquire

Florida Department of Revenue

Post Office Box 8030

4070 Esplanade Way

Tallahassee, Florida 32314-8030

Gary Walther

5965 Spring Street

Austell, Georgia 30168-4041

James Zingale, Executive Director

Department of Revenue

5050 West Tennessee Street

104 Carlton Building

Tallahassee, Florida 32399-0100

Linda Lettera, General Counsel

Department of Revenue

204 Carlton Building

Post Office Box 6668

Tallahassee, Florida 32314-6668

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.