07-002540 Michael K. Dugdale vs. Department Of Revenue, Child Support Enforcement Program Status: Closed Recommended Order on Thursday, October 18, 2007.

Summary: Respondent garnished two of Petitioner`s bank accounts and followed appropriate statutory procedure.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL K . DUGDALE , )

)

Petitioner , )

)

vs. ) Case Nos. 07 - 2540

) 07 - 2541

DEPARTMENT OF REVENUE, CHILD )

SUPPORT ENFORCEMENT PROGRAM , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these cases

before Jeff B. Clark, Administrative Law Judge of the Division

of Administrative Hearings, on August 16, 2007. The hearing was

held by video teleconferencing b etween Tampa and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Michael Moran, Esquire

Law Offices of Michael Moran

2197 Ringling B oulevard

Sarasota, Florida 34237

For Respondent: Albert Thorburn, Esquire

Department of Revenu e

Post Office Box 8030

Tallahassee, Florida 32314 - 8030

STATEMENT OF THE ISSUES

The issues for determination are: (1) whether Petitioner

is delinquent in child support payments; and (2) whether

Respondent is authorized to levy P etitioner ' s two bank accounts

and apply the funds to reduce Petitioner ' s past due child

support obligation.

PRELIMINARY STATEMENT

On September 15, 2006, Respondent, Department of Revenue,

Child Support Enforcement Program ( " Department " ), sent two

Notices o f Intent t o Levy to Petitioner, Michael K. Dugdale

( " Petitioner " ). In the notices, the Department advised

Petitioner that it intended to levy Petitioner ' s bank accounts

at Bank of America and Regions Bank. According to each notice,

the levy was being ta ken because of Petitioner ' s nonpayment of

child support in the amount of $25,725.76 as of August 4, 2006.

On October 2, 2006, Petitioner filed two Petitions f or

Administrative Hearing each contesting one of the Notices o f

Intent t o Levy. On June 7, 2007, the Department referred the

matter to the Division of Administrative Hearings to conduct an

administrative hearing in each case.

On June 8, 2007, an Initial Order was sent to both parties

requesting mutually convenient dates for a final hearing. On

June 11, 2007, the cases were consolidated. On June 26, 2007,

the cases were scheduled for final hearing on August 16, 2007,

in Bradenton, Florida. On August 6, 2007, an A mended O rder

changed the site of the hearing to Tampa, Florida , and allowed

appeara nces by teleconference.

The final hearing took place as scheduled. Petitioner

testified on his own behalf. Respondent presented the testimony

of Darlene Collier - Erby and Tammy Carr and offered 22 exhibits ,

which were admitted into evidence and marked Re spondent ' s

Exhibits 1 through 22.

The parties agreed that proposed recommended orders would

be filed no later than 20 days following the filing of the

transcript of the proceedings. The T ranscript of the

proceedings was filed with the C lerk of the Divi sion of

Administrative Hearings on September 6, 2007. Both parties

filed Proposed Recommended Orders.

All references are to Florida Statutes (200 6 ) , unless

otherwise noted.

FINDINGS OF FACT

Based on the evidence and testimony of the witnesses

presented a nd the entire record in this proceeding, the

following Findings of Fact are made:

1. 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.

2. Petitioner moved to Florida in early 1994.

3. On Novemb er 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 dete rmined by the State of Connecticut.

4. 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.

5. 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.

6. On July 12, 2007, the State of Connecticut certified

that as of July 12, 2007, Petitioner ha d a $23,853.56 child

support arrearage. Petitioner stipulated that the child support

arrearage was at least $23,000.00.

7 . On September 8, 2006, the Department sent a Notice to

Freeze to the B ank of America ; on the same day a Notice of

Freeze was se nt 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.

8 . Bank of America responded indicating that Petitioner

had $1,270.95 in his account; R egions Bank reported $591.42.

9 . On September 15, 200 6 , 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 409.2 5656, 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. Th is property

consists of liquid assets and is in the

control of [appropriat e 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 b y

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.

10. Although Petitioner testified that he did not receive

the notices, neither was returned by the postal service.

1 1 . On October 2, 2006, Petitioner filed a Petition for

Administrative Hearing (Petition), in respons e to each Notice o f

Intent t o Levy .

1 2 . In October 2006, the Department issued and sent

Notices of Extension of Freeze to each bank indicating that

Petitioner was challenging the Notices o f Intent t o Levy.

1 3 . The monies on deposit in each ban k were the result of

payments received by Petitioner for his labors as a lawn

caretaker.

CONCLUSIONS OF LAW

1 4 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla . Stat . (2007).

1 5 . The Department is the state agency responsible for the

administration of the Child Support Enforcement Program.

§ 409.2557(1), Fla . Stat.

1 6 . Subsection 409.2557(2), Florida Statutes, provides , in

pertinent part , the following:

The depar tment 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 the resources

of their parents to the extent possible.

The department ' s au thority 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.

1 7 . The burden of proof, absent a statutory directive to

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 19 77). 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 th at the proposed levy is

authorized by Section 409.25656, Florida Statutes. Petitioner

seeks to contest the Department ' s levy. To prevail in this

proceeding, Petitioner must show that the Department's levy is

not authorized by Section 409.25656, Florida S tatutes, or that

the funds on deposit with the banks were exempt from garnishment

or other defenses raised in his Petitions for Administrative

Hearing.

1 8 . Pertinent parts of Chapter 88, Florida Statutes, the

" Uniform Interstate Support Act " state s , as fo llows:

88.2051 Continuing exclusive

jurisdiction. - -

* * *

(4) A tribunal of this state shall

recognize the continuing exclusive

jurisdiction of a tribunal of another state

which has issued a child support order

pursuant to this act or a law sub stantially

similar to this act.

88.2071 Recognition of controlling child

support order. --

(1) If a proceeding is brought under this

act and only one tribunal has issued a child

support order, the order of that tribunal

controls and must be so recogni zed.

* * *

(4) The tribunal that issued the

controlling order under subsection (1),

subsection (2), or subsection (3) is the

tribunal that has continuing, exclusive

jurisdiction under s. 88.2051.

88.6011 Registration of order for

enforcemen t . -- A support order or an income -

withholding order issued by a tribunal of

another state may be registered in this

state for enforcement.

88.6021 Procedure to register order for

enforcement . --

(1) A support order or income - withholding

order of anothe r state may be registered in

this state by sending the following

documents and information to the appropriate

tribunal in this state:

(a) A letter of transmittal to the tribunal

requesting registration and enforcement.

(b) Two copies, including one c ertified

copy, of all orders to be registered,

including any modification of an order.

(c) A sworn statement by the party seeking

registration or a certified statement by the

custodian of the records showing the amount

of any arrearage.

(d) The name of the obligor and, if known:

1. The obligor ' s address and social

security number.

2. The name and address of the obligor ' s

employer and any other source of income of

the obligor.

3. A description and the location of

property of the obligor in thi s state not

exempt from execution.

(e) The name and address of the obligee

and, if applicable, the agency or person to

whom support payments are to be remitted.

88.6031 Effect of registration for

enforcement. --

(1) A support order or income - withhold ing

order issued in another state is registered

when the order is filed in the registering

tribunal of this state.

(2) A registered order issued in another

state is enforceable in the same manner and

is subject to the same procedures as an

order issued by a tribunal of this state.

(3) Except as otherwise provided in this

article, a tribunal of this state shall

recognize and enforce, but may not modify, a

registered order if the issuing tribunal had

jurisdiction.

19. The Department and the Circuit C ourt in and for

Manatee County, Florida, correctly followed the statutory

dictates in registering and enforcing the Connecticut child

support order and arrearage. See § 88.6031(3), Fl a. Stat . ;

Department of Revenue v. Cuevas , 862 So. 2d 810 (Fla. 4 th DCA

2003); Department of Revenue v. Cooper , et al. , 861 So. 2d 519

(Fla. 4 th DCA 2003).

20 . 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 [1/]

to all persons who have in their possession

or under their control any credits or

personal 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

disp osition, 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 o bligor 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 mai ntain 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

dire ctor 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

b y 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 obligo r.

* * *

(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 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 a petition in the existing

circuit court case . Alternatively, the

obligor may file a petition under the

applicable provisions of chapt er 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 purs uant to s. 120.68.

Also, after an action has been initiated in

circuit court, an action may not be brought

under chapter 120.

2 1 . Petitioner ' s child support obligation, as of July 20,

2007, was $23,853.56.

2 2 . Petitioner had $1,270.95 on deposit w ith Bank of

America that was subject to garnishment; Petitioner had $591.42

on deposit with Regions Bank that was subject to garnishment.

2 3 . Petitioner has urged that Respondent did not follow

the procedural requirements of Chapter 77, Florida Stat utes

(Garnishment) . Had the Florida Legislature desired to require

Respondent to be limited by Chapter 77, Florida Statutes, it

would not have enacted Section 409.25656, Florida Statutes

(Garnishment) , which Respondent has correctly utilized.

2 4 . Pe titioner has urged that the levy is inappropriate

because the funds on deposit, $1,270.95 in a checking account

( Bank of America ) and $591.42 in a savings account ( Regions

Bank ) , were generated from his labors as a lawn caretaker.

2 5 . Title 15 U.S. C . Section 1673, reads, in pertinent

part, as follows:

(a) Maximum allowable garnishment.

Except as provided in subsection (b) and in

section 305 [15 USCS § 1675 ], the maximum

part of the aggregate disposable earnings of

an individual for any workweek which is

subject to garnishment may not exceed

(1) 25 per centum of his disposable

earnings for that week, or

(2) T he amount by which his disposable

earnings for that week exceed thirty times

the Federal minimum hourly wage prescribed

by section 6( a)(1) of the Fair Labor

Standards Act of 1938 [29 USCS § 206(a)(1) ]

in effect at the time the earnings are

payable whichever is less. In the case of

earnings for any pay period other than a

week, the Secretary of Labor shall by

regulation prescribe a mult iple of the

Federal minimum hourly wage equivalent in

effect to that set forth in paragraph (2).

* * *

(b) Exceptions.

(1) The restrictions of subsection (a) do

not apply in the case of --

(A) A ny order for the support of any

person iss ued by a court of competent

jurisdiction or in accordance with an

administrative procedure, which is

established by State law, which affords

substantial due process, and which is

subject to judicial review.

* * *

(2) The maximum part of the ag gregate

disposable earnings of an individual for any

workweek which is subject to garnishment to

enforce any order for the support of any

person shall not exceed --

(A) W here such individual is supporting

his spouse or dependent child (other than a

spou se or child with respect to whose

support such order is used), 50 per centum

of such individual ' s disposable earnings for

that week; and

(B) W here such individual is not

supporting such a spouse or dependent child

described in clause (A), 60 per centum of

such individual ' s disposable earnings for

that week; except that, with respect to the

disposable earnings of any individual for

any workweek, the 50 per centum specified in

clause (A) shall be deemed to be 55 per

centum and the 60 per centum specified in

clause (B) shall be deemed to be 65 per

centum, if and to the extent that such

earnings are subject to garnishment to

enforce a support order with respect to a

period which is prior to the twelve - week

period which ends with the beginning of such

workwee k.

2 6 . The protection afforded by Title 15 U.S.C.

Section 167 3 ( Consumer Credit Protection – Restrictions o n

Garnishment ) , is directed at " disposable earnings of a

workweek , " not funds on deposit in a checking or savings account

generated by individ ual labors. No evidence was presented that

the funds on deposit were , or were not , any portion of

Petitioner ' s " disposable earnings of a workweek. " General

Motors Acceptance Corp. v. Metropolitan Opera Association, Inc .,

98 Misc.2d 307; 413 N . Y . S . 2d 818.

2 7 . Petitioner urges entitlement to the protection of

Subsection 222.11(3), Florida Statutes, which states :

(3) Earnings that are exempt under

subsection (2) and are credited or deposited

in any financial institution are exempt from

attachment or garn ishment for 6 months after

the earnings are received by the financial

institution if the funds can be traced and

properly identified as earnings.

Commingling of earnings with other funds

does not by itself defeat the ability of a

head of family to trace e arnings.

2 8 . Because Subsection 222.11(3), Florida Statutes, refers

to "e arnings that are exempt under subsection (2) " and " head of

family , " those portions of the Statute must be examined .

29 . Su bsection 222.11(2) (a) , Florida Statutes, states, in

pertine nt part:

All of the disposable earnings of a head of

family whose disposable earnings are less

than or equal to $500 a week are exempt from

attachment or garnishment.

3 0 . Subsection 212.11(1)(c), Florida Statutes, defines

" h ead of family " to include " any natural person who is providing

more than one - half of the support for a child or other

dependent. " No evidence was presented to establish that

Petitioner was a " head of family, " nor was a time of receipt of

identifiable funds established. No exemption wa s established.

3 1 . The Department has met its burden of proof in this

proceeding. Petitioner has not met his burden. Therefore, the

Department is authorized to levy on Petitioner ' s two

aforementioned bank accounts in an amount not to exceed

$23,853 .56 and to apply those funds to his past due child

support obligation.

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 paymen t.

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 .

ENDNOTES

1/ Subsection 1.01(11), Florida Statutes , s tates: The words

" registered mail " inc lude certified mail with return receipt

requested.

COPIES FURNISHED :

Michael Moran, Esquire

Law Offices of Michael Moran

2197 Ringling Boulevard

Sarasota, Florida 34237

Albert Thorburn, Esquire

Department of Reve nue

Post Office Box 8030

Tallahassee, Florida 32314

Bruce Hoffmann, General Counsel

Department of Revenue

The Carlton Building, Room 204

501 South Calhoun Street

Tallahassee, Florida 32399 - 0100

James Zingale, Executive Director

Department of Revenue

Th e Carlton Building, Room 104

501 South Calhoun Street

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

t o this Recommended Order should be filed with the agency that

will issue the Final Order in this case.