00-004615 Kim Sheldon vs. Department Of Revenue, Child Support Enforcement Program Status: Closed Recommended Order on Friday, April 20, 2001.

Summary: Petitioner`s funds used to meet unpaid child support obligation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIM SHELDON, )

)

Petitioner, )

)

vs. ) Case No. 00-4615

)

DEPARTMENT OF REVENUE, CHILD )

SUPPORT ENFORCEMENT PROGRAM, )

)

Respondent. )

)

RECOMMENDED ORDER

On January 9, 2001, a formal administrative hearing in this

case was held by videoconference in Tampa and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, of the Division of Administrative Hearings. Due to

technical problems with the conferencing equipment, the hearing

was interrupted and was subsequently completed by

videoconference in Tampa and Tallahassee on March 16, 2001.

APPEARANCES

For Petitioner : Manuel V. Fajardo, Esquire

610 West Azeele Street

Tampa, Florida 33606-2273

For Respondent : Albert Thorburn, Esquire

Department of Revenue

Post Office Box 8030

4070 Esplanade Way

Tallahassee, Florida 32314-8030

STATEMENT OF THE ISSUE

The issue in the case is whether, under the provisions of

Section 409.25656, Florida Statutes, the Department of Revenue

may apply bank account funds identified as belonging to Kim

Sheldon towards an unpaid child support obligation.

PRELIMINARY STATEMENT

By Notice of Intent to Levy dated July 14, 2000, the

Department of Revenue informed Kim C. Sheldon that "liquid

assets" located at the MacDill Federal Credit Union were being

levied to satisfy unpaid child support debt. Ms. Sheldon

requested a formal hearing. The Department forwarded the

request for hearing to the Division of Administrative Hearings,

which scheduled and conducted the proceeding.

During the hearing, the Petitioner presented the testimony

of three witnesses and had Exhibits numbered 1-5 and 7 admitted

into evidence. The Respondent presented the testimony of two

witnesses and had Exhibits numbered 1-8 admitted into evidence.

No transcript of the hearing was filed. The parties filed

Proposed Recommended Orders.

FINDINGS OF FACT

1. By Final Judgment of Dissolution of Marriage dated

August 9, 1995 (Case No. 95-742-CA-01, Fifth Judicial Circuit,

Hernando County, Florida), Kim C. Meccariello was divorced from

Dale W. Meccariello.

2. Kim C. Meccariello subsequently remarried and is known

as Kim C. Sheldon.

3. As part of the settlement agreement in the 1995

divorce, Kim C. Sheldon (Petitioner) became obligated to pay

monthly child support in the amount of $472.82.

4. On November 1, 1999, the Department of Revenue

(Department) became involved in this matter when the

Petitioner's former husband apparently filed a "Request for

Participation in Central Depository Program Pursuant to Florida

Statute 61.13" seeking to have the Department collect unpaid

child support on his behalf.

5. By form letter dated December 1, 1999, the Department

notified the supervisor of the Support Division, Hernando County

that payments in the case should be redirected to the

Department. The Petitioner asserts that she did not get a copy

of this notice. The certificate of service indicates a copy was

mailed to her.

6. The Petitioner asserts that because she did not get the

notice, the child support debt accounting fails to include

payments made directly to her former husband, but has no

documentation of the form or amount of such payments. There is

no documentation that any direct payments were made. The

evidence fails to establish that such direct payments occurred.

7. Although the exact amount of unpaid child support owed

by the Petitioner is disputed, the evidence clearly establishes

that her unpaid child support debt clearly exceeds the amount of

funds at issue in this proceeding.

8. By Notice of Freeze dated July 7, 2000, the Department

directed the MacDill Federal Credit Union to freeze the

Petitioner's funds in the institution based on an unpaid child

support obligation in the amount of $6,619.48.

9. The Department subsequently received a letter on

MacDill Federal Credit Union letterhead, dated July 11, 2000,

and indicating that the Petitioner had two accounts at the

institution : a savings account (#126552-01) containing $495.65;

and a checking account (#126552-15) containing $1,123.42.

10. By Notice of Intent to Levy dated July 14, 2000, the

Department notified the Petitioner that the funds had been

frozen and advised her of her right to challenge the action.

The Petitioner requested a formal hearing.

11. A letter from Strategic Outsourcing, Inc., dated

July 18, 2000, states that the Petitioner's husband is an

employee of Nicon, Inc., and that his wages are direct deposited

into MacDill Federal Credit Union account #126522 on a weekly

basis. Strategic Outsourcing, Inc ., apparently handles payroll

processing for Nicon, Inc.

12. By Notice of Special Account re lease dated July 26,

2000, the Department notified the MacDill Federal Credit Union

that all but $550.00 in the checking account (#126552-15) was

released. The $495.65 in the savings account remained frozen.

The total amount of currently frozen funds is $1,045.65.

13. By Notice of Extension of Freeze dated July 27, 2000,

the Department notified the MacDill Federal Credit Union that

the Petitioner was challenging the Department's freeze and that

the funds should remain frozen until the matter is resolved.

14. The Petitioner and her current spouse are joint

holders of the accounts at the MacDill Federal Credit Union.

Because her husband did not have time to open the accounts, the

Petitioner opened the accounts by herself, and her husband was

added about a week later.

15. The Department's decision to release the checking

account funds (except for $550.00) was apparently based on

conversations with the couple and upon receipt of the letter

from Strategic Outsourcing, Inc. The funds were released based

on the Department's determination that, other than $550.00, the

checking account funds were directly attributable to the

Petitioner's husband's income.

16. The Department asserts that the currently frozen funds

should be used to satisfy, in part, the Petitioner's unpaid

child support obligation.

17. The Petitioner asserts that since February 2000, she

has been unemployed, that none of the funds in the accounts are

attributable to her earnings, and that the funds should not be

used to satisfy her unpaid child support obligation.

18. According to the bank statement for the period

March 1, 2000, to March 31, 2000, the balance in the checking

account on March 1, 2000, was $862.10. There is no evidence

that the March 1 balance did not include funds earned by and

attributable to the Petitioner.

19. According to account statements, a total of $2,170.97

in unidentified deposits were made to the account between

March 1, 2000, and July 15, 2000, including a $958.97 cash

deposit on April 24, 2000, a $162.00 cash deposit on May 8,

2000, a $500.00 check deposit on June 8, 2000, and a $550

deposit of unidentified type on July 3, 2000.

20. At the hearing, the Petitioner and her husband

testified that deposits into the checking account not directly

attributable to his income were made by grown children residing

at home and contributing towards household expenses which were

allegedly paid from the husband's income. Other deposits were

claimed to be small loans or gifts from family members.

21. There was no documen tation offered at the hearing to

support the testimony. None of the children or relatives

testified at the hearing. The evidence fails to establish that

the deposits in the joint account came from adult children or

other relatives.

22. According to the bank statement for the period

April 1, 2000, to April 30, 2000, a deposit on April 21, 2000,

of $627.00 described as "US TREASURY 220" was a tax refund. The

Petitioner's husband asserted that based on income, the refund

was "90 percent" attributable to him. There was no

documentation offered at the hearing to support the testimony.

The evidence fails to establish that the tax refund deposited

into the joint account is not attributable to the Petitioner.

CONCLUSIONS OF LAW

23. The Division of Admini strative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

24. The Department has the burden of proving by a

preponderance of the evidence, that the Petitioner owes an

unpaid child support obligation and that there are funds

belonging to the obligor which may be appropriately applied

towards satisfaction of the debt. Balino v. Department of

Health and Rehabilitative Services , 348 So. 2d 349 (Fla. 1st DCA

1977). Florida Department of Transportation v. J.W.C. Company,

Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). In this case, the

evidence establishes that the Department acted pursuant to the

statute and that the funds should be applied to satisfy the

Petitioner's unpaid child support obligation.

25. Section 409.25656, Florida Statutes, sets forth the

legal procedure by which funds belonging to a person with an

unsatisfied child support obligation may be garnished by the

Department of Revenue. Essentially, the statute requires that

the Department direct financial institutions to match

accountholders against a list of persons owing unpaid child

support. The financial institutions notify the Department where

a match is found. The Department issues a notice garnishing the

funds in the account and then notifies the account holder that

the funds have been frozen and that the Department intends to

apply the funds to an unpaid child support obligation. The

account holder may challenge the action in either a circuit

court action or in an administrative proceeding under

Chapter 120, Florida Statutes. Although Section 409.25656(11),

Florida Statutes, authorizes the Department to "adopt rules to

implement this section" no rules have yet been adopted.

26. The Petitioner asserts that the fund s remaining frozen

in the accounts are not attributable to her and may not be

applied towards the satisfaction of the unpaid child support

debt. The evidence fails to support the assertion.

27. The testimony of the Petitioner as to deposits by

grown children living at home was unsupported by documentation.

None of the children testified at the hearing. As to deposits

of gifts or loans from family member, there was likewise no

testimony or documentation offered to support the assertion.

The testimony is not credible and is rejected.

28. Assertions that the tax refund was based almost

entirely on the husband's income were unsupported by tax or

income records. The testimony is not credible and is rejected.

29. During the hearing, the Department asserted that in

situations involving a jointly held bank account, the Department

will release funds if the Department becomes "convinced" that

the frozen funds are attributable to a depositor other than the

party under the child support obligation.

30. In the De partment's Proposed Recommended Order, the

Department asserts that because the Respondent's current spouse

was added as a signatory to the accounts after the accounts were

opened, requirements established in case law for a joint tenancy

of the entireties are not met (specifically, the simultaneous

creation of the asset) and, therefore, their joint assets

(including the husband's earnings) may be attached.

31. The issue of whether the Respondent and her current

husband intended to create a tenancy by the entireties when the

joint accounts were opened was not properly raised during this

proceeding. To determine intent sufficient to classify the

accounts requires the production of evidence beyond that offered

by either party in this hearing.

32. The Depart ment's assertion is also contrary to the

position taken by the Department during earlier conversations

with the Petitioner and her husband and articulated at the

hearing, which resulted in the earlier release of joint checking

account funds directly attributable to earnings deposited by the

husband.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Department of Revenue issue a

FINAL ORDER directing that $1,045.65 currently held at the

MacDill Federal Credit Union be applied towards meeting the

Petitioner's unpaid child support obligation.

DONE AND ENTERED this 20th day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

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 20th day of April, 2001.

COPIES FURNISHED :

Manuel V. Fajardo, Esquire

610 West Azeele Street

Tampa, Florida 33606

Albert Thorburn, Esquire

Florida Department of Revenue

Post Office Box 8030

4070 Esplanade Way

Tallahassee, Florida 32314-8030

Linda Lettera, 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.