02-003119 Robert C. Tillman vs. Department Of Revenue, Child Support Enforcement Program Status: Closed Recommended Order on Thursday, February 27, 2003.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT C. TILLMAN, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3119

)

DEPARTMENT OF REVENUE, CHILD )

SUPPORT ENFORCEMENT PROGRAM, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

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

on January 17, 2003, in Tallahassee, Florida, before the

Division of Administrative Hearings, by its designated

Administrative Law Judge, Bar bara J. Staros.

APPEARANCES

For Petitioner: Jeffrey S. Richardson, Esquire

6753 Thomasville Road

Tallahassee, Florida 32312 - 3893

For Respondent: Robert Leher, Esquire

Department of Revenue

Child Support Enforcement Program

Post Office Box 8030

Tallahassee, Florida 32314 - 8030

STATEMENT OF THE ISSUES

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 Reven ue, Child Support

Enforcement Program is authorized to employ the remedy of

garnishment as set forth in Section 409.25656, Florida Statutes.

PRELIMINARY STATEMENT

On August 15, 2001, Respondent, Department of Revenue,

Child Support Enforcement Program (th e Department) sent a Notice

of Intent to Levy (NOIL) to Petitioner, Robert C. Tillman. The

NOIL advised Petitioner that the Department intended to levy on

Petitioner's personal property in the form of liquid assets in

the control of South Atlantic Federal Credit Union in Boca

Raton, Florida. The NOIL further advised Petitioner that this

action was being taken because of Petitioner's nonpayment of

child support in the amount of $2,254.96. The NOIL informed

Petitioner that he could contest the agency's act ion by either

filing an action in circuit court or by requesting an

administrative hearing within 21 days.

Petitioner challenged the Department's intended action and

filed a Florida Petition for Hearing. The Department forwarded

the case to the Division of Administrative Hearings on or about

August 7, 2002. A formal hearing was scheduled for October 22,

2002. On October 18, 2002, the Department issued an Amended

NOIL to Petitioner advising him that it intended to levy on his

liquid assets in the amount of $6,094.12 as the result of his

nonpayment of child support. The Amended NOIL advised

Petitioner that he had 21 days in which to either file a

petition in his existing court case in circuit court or to

request an administrative hearing. The Department filed a

motion requesting that the Amended NOIL be considered at the

hearing scheduled for October 22, 2002.

The hearing commenced as scheduled on October 22, 2002. At

hearing, Petitioner requested the 21 days to which he was

entitled and made an ore ten us motion to continue the hearing.

The hearing was rescheduled for November 18, 2002. Petitioner

obtained counsel who filed a Motion for Continuance, which was

granted. The hearing was then rescheduled for January 17, 2003.

At hearing, Petitioner did not present the testimony of any

witness. Petitioner's Exhibits 1 through 5 were admitted into

evidence. 1/ Respondent presented the testimony of two witnesses,

Denise Buchanan and Alisha Agnew (the latter appeared by

telephonic connection from West Palm Beach, Florida).

Respondent's Exhibits 1 through 15 were admitted into evidence.

A Transcript of the commencement of the hearing on

October 22, 2002, was filed on November 5, 2002. However, the

hearing conducted on January 17, 2003, was not transcribe d. The

parties requested more than 10 days in which to file proposed

recommended orders and that request was granted. The parties

filed proposed recommended orders which were considered in the

preparation of this recommended order.

FINDINGS OF FACT

Stip ulated Facts

1. 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 Cour t).

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.

2. On June 12, 1985, the Broward County Circuit Court

issued an Orde r to Transfer in Linda Tillman v. Robert C.

Tillman , Case No. 81 - 20402, to Palm Beach County, Florida.

3. 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 o f 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 curre nt 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 p er week in liquidation of the arrearages.

4. 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.

5. 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 suppo rt

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.

6. 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 p er week plus a $150.00 lump - sum payment on

arrearages to purge his contempt.

7. 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

$2 0.00 per week plus a $500.00 partial lump - sum payment on

arrearages to purge his contempt.

8. 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.

9. On August 15, 2001, the Department mailed a Notice of

Intent to Levy (NOIL) in an amount up to $2,254.96 to Petiti oner

by certified mail, return receipt requested. Petitioner

received the NOIL on August 18, 2001.

10. The NOF and NOIL mailed by the Department satisfied

the statutory notice requirements of Section 409.25656, Florida

Statutes.

11. Petitioner filed a Request for Administrative Hearing

dated August 30, 2001, which was received by the Department on

September 18, 2001.

12. 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.

13. The Department dismissed Petitioner's August 30, 2001,

Request for Administrative Hearing as legally insufficient.

14. Petitioner filed a timely and legally sufficient

Revised Petition for Hearing dated January 7, 2002, which w as

received by the Department on January 16, 2002.

15. 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.

Tillma n , 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.

16. The official payment records of the P alm 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.

17. 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.

18. The Department faxed an Amended NOIL to Petitioner in

a n amount up to $6,094.12 on October 18, 2002, and mailed a copy

to Petitioner on October 19, 2002. 2/

19. 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 Cr edit Union on December 20, 2002.

Facts Based Upon the Evidence of Record

20. Petitioner made five timely monthly payments of $50.00

in Tillman v. Tillman between May 15, 2002, and November 25,

2002.

21. Petitioner made two more timely monthly paymen ts 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.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

ju risdiction over the parties to and subject matter of this

proceeding. Section 120.57(1), Florida Statutes.

23. The Department of Revenue, Child Support Enforcement

Program is the state agency responsible for the administration

of the state's child suppo rt enforcement program. Section

409.2557(1), Florida Statutes.

24. As the party asserting the affirmative of an issue

before this administrative tribunal, the Department has the

burden of proof. Florida Department of Transportation v. J.W.C.

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

Department has met its burden.

25. Section 409.25656, Florida Statutes, reads in

pertinent part as follows:

Garnishment

(1) If a person has a support obligation

which is subject to enforcemen t 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 perso nal

property, including wages, belonging to the

support obligor, or owing any debts to the

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 th e 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 t he

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 h er 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, persona l 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

accomplis hed 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 by the obligor.

If the departm ent levies upon securities and

the value of the securities is less than the

total amount of past due or overdue support,

the person who possesses or controls the

securities shall liquidate the securities in

a commercially reasonable manner. After

liquidat ion, the person shall transfer to

the department the proceeds, less any

applicable commissions or fees, or both,

which are charged in the normal course of

business. If the value of the securities

exceeds the total amount of past due or

overdue support, th e obligor may, within 7

days after receipt of the department's

notice of levy, instruct the person who

possesses or controls the securities which

securities are to be sold to satisfy the

obligation for past due or overdue support.

If the obligor does not p rovide instructions

for liquidation, the person who possesses or

controls the securities shall liquidate the

securities in a commercially reasonable

manner and in an amount sufficient to cover

the obligation for past due or overdue

support, less any applic able commissions or

fees, or both, which are charged in the

normal course of business, beginning with

the securities purchased most recently.

After liquidation, the person who possesses

or controls the securities shall transfer to

the department the total amount of past due

or overdue support.

* * *

(8) An obligor may contest the notice of

intent to levy provided for under subsection

(7) by filing a petition in the existing

circuit court case. 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 li mited

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. (emphasis supplied)

26. Petitioner has a past - due child support obligation in

the amount of $6,0 94.12 as of January 17, 2003, which is subject

to enforcement by the Department.

27. The Department gave the statutorily required notice to

the financial institution that held personal property owned by

Petitioner in its possession and control.

28. The D epartment issued a NOIL and Amended NOIL which

notified Petitioner that the Department intended to levy upon

his personal property; stated that the action was being taken

for Petitioner's nonpayment of child support; and advised

Petitioner of his rights to contest the notice of intent to

levy.

29. Section 409.25656(8), Florida Statutes, gives an

obligor a choice of contesting the NOIL in the existing circuit

court case or by filing a petition under chapter 120, Florida

Statutes. Petitioner elected to cont est the NOIL by filing a

Petition for Hearing under Chapter 120, Florida Statutes. Once

he elected to do that, he is prohibited from also filing an

action in the proceeding in circuit court. Likewise, after

making that election, he cannot now successfull y argue that the

matter is precluded from being heard in this forum.

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 le vies 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 Febr uary, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalache e 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 2 7th day of February , 2003.

ENDNOTES

1/ Petitioner's Exhibit numbered 4 was filed late by agreement

of the parties.

2/ Petitioner acknowledged receipt and waived the requirement

that the Amended NOIL be sent by certified mail during the

hearing on O ctober 22, 2002.

COPIES FURNISHED:

Jeffrey S. Richardson, Esquire

6753 Thomasville Road

Tallahassee, Florida 32312 - 3893

Robert Leher, Esquire

Department of Revenue

Child Support Enforcement Program

Post Office Box 8030

Tallaha ssee, Florida 32314 - 8030

Bruce Hoffmann, General Counsel

Department of Revenue

204 Carlton Building

Tallahassee, Florida 32399 - 0100

James Zingale, Executive Director

Department of Revenue

104 Carlton Build ing

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 shou ld be filed with the agency that

will issue the Final Order in this case.