Dep't of Revenue v. McLeod

• Decision Date: 17 August 2012
• Docket Number: No. 1D11–1124.,1D11–1124.
• Citation: 96 So.3d 443
• Parties: DEPARTMENT OF REVENUE and Steven McLeod, Petitioners, v. Marianne McLEOD, Respondent.
• Court: Florida District Court of Appeals

96 So.3d 443

DEPARTMENT OF REVENUE and Steven McLeod, Petitioners,

v.Marianne McLEOD, Respondent.

No. 1D11–1124.

District Court of Appeal of Florida, First District.

Aug. 17, 2012.

Pamela Jo Bondi, Attorney General, William H. Branch, Assistant Attorney General, Tallahassee, for Petitioner Department of Revenue.

Rhonda S. Clyatt, Panama City, for Respondent.

ON MOTION FOR REHEARING

THOMAS, J.

This cause is before us on Petitioners' motion for rehearing, rehearing en banc; or alternatively, certification of question of great public importance. We deny the motion, but write to clarify our original opinion. Accordingly, we withdraw our former opinion of June 18, 2012, and substitute this opinion in its place.

Petitioner, the Department of Revenue (DOR), seeks a writ of certiorari to quash a non-final order dismissing DOR's petition for modification of child support, filed on behalf of co-Petitioner, Steven McLeod, Respondent's former husband and the non-custodial parent.¹ DOR challenges the trial court's ruling that DOR could not represent the non-custodial obligor parent, because the child was not receiving public assistance, and DOR sought to lower the obligor's payments. Although we agree that the trial court's basis for dismissing the petition was erroneous, we also find that the court reached the right result. We hold that DOR does not have standing to seek a modification of child support on behalf of a non-custodial parent obligated to pay support, unless either party or the child is receiving public assistance, or when the obligor has failed to make support payments and DOR is called upon by the custodial parent to assist in enforcing a child support order. Thus, because the challenged ruling was not incorrect, DOR has failed to establish that the trial court departed from the essential requirements of law; therefore, we deny the petition.

Procedural Background

Co–Petitioner Steven McLeod and Respondent were divorced in 2006. Under the final dissolution judgment, Mr. McLeod was the non-custodial parent and was required to pay child support “through the Florida Disbursement Unit.” In 2007, Mr. McLeod filed a petition for modification of his child support obligation, which was followed by Respondent's counter-petition. That year, the trial court entered two contempt orders against Mr. McLeod for child support arrearages. In September 2008, Mr. McLeod voluntarily dismissed his petition. Mr. McLeod apparently proceeded pro se in these post-dissolution proceedings, whereas Respondent was represented by counsel.

In November 2009, DOR, “on behalf of” Mr. McLeod, filed a “Supplemental Petition for Modification of Support,” stating, inter alia, that Mr. McLeod and the child “are eligible for child support services of [DOR] pursuant to chapter 409, Florida Statutes.” The petition also stated: “DOR's participation and the undersigned attorney's representation are limited in scope as set forth in Section 409.2564(5), Florida Statutes.” The trial court conducted a hearing and entered a written order dismissing DOR's supplemental petition.

In its order, the trial court relied on Department of Health and Rehabilitative Services v. Heffler, 382 So.2d 301 (Fla.1980), and explained that “the Florida Supreme Court addressed the constitutionality of a statute allowing the Department of Health and Rehabilitative Services to bring a paternity action. In holding the statute constitutional, the Supreme Court addressed the fact that children should be maintained from resources of the parents, not the citizens of the State of Florida.” The trial court then found:

Here, DOR is representing a non-custodial parent whose child does not receive public assistance in a proceeding to lower child support. Obviously, if child support was lowered, the child would be harmed. This is contrary to the rationale of Heffler whereby responsible parents should maintain their children. The funds and resources of this State should not be utilized by bringing court actions on behalf of a non-custodial parent, whose child is not receiving public assistance, when such action would be to the detriment of the child. Accordingly, the Court finds that the statutes, as applied in this case, [do] not allow representation of Former Husband by DOR.

(Emphasis in original.)

Analysis

“It is an established principle of law in this jurisdiction that common law certiorari is not a permissible vehicle for seeking review of an interlocutory order rendered in a law action unless it is clearly established that (1) the ruling, if erroneous, constitutes a departure from the essential requirements of law; and (2) it will cause material injury to the petitioner throughout the remainder of the proceedings; and (3) the injury is one for which there will be no adequate remedy by appeal after final judgment.” Dairyland Ins. Co. v. McKenzie, 251 So.2d 887, 888 (Fla. 1st DCA 1971). Here, DOR fails to satisfy the first prong of this tripartite test.

DOR contends that the trial court's ruling that DOR lacks standing to seek a downward modification of child support, when neither the parent nor the child have received public assistance, is contrary to DOR's federal and state mandates and established precedent. We disagree.

The statutory requirement that DOR review child support orders on a periodic basis, and if necessary, seek a modification, exists only with respect to “child support orders in Federal Title IV–D cases at least once every 3 years when requested by either party, or when support rights are assigned to the state under s. 414.095(7)....” ²§ 409.2564(11). As discussed below, however, based on the relevant statutes, there is no Title IV–D case with respect to child support obligations unless either or both parents, or the dependent child, are receiving public assistance, or if the custodial parent has requested DOR's assistance in enforcing or modifying a child support order. Based on the record, there is no evidence that either situation exists here.

As DOR itself notes in its petition to this court: “To be eligible for a federal Temporary Assistance for Needy Families (TANF) welfare block grant under Title IV–A of the Social Security Act, states must operate a child support enforcement program in accordance with an approved state plan under Title IV–D of the Act.” (Emphasis added.) DOR also states that “the Title IV–D program required the states to provide custodial parents with legal assistance in collecting child support from noncustodial parents.” See also42 U.S.C. § 602(a)(2) (providing that for a state to be eligible for the program's block grants, it must submit, inter alia, “[a] certification by the chief executive officer of the State that, during the fiscal year, the State will operate a child support enforcement program under the State plan approved under part D of this subchapter.”) (emphasis added).

To this end, 42 U.S.C. section 651 provides:

For the purpose of enforcing the support obligations owed by noncustodial parents to their children and the spouse (or former spouse) with whom such children are living, ... obtaining child and spousal support, and assuring that assistance in obtaining support will be available under this part to all children (whether or not eligible for assistance under a state program funded under part A of this subchapter) for whom such assistance is requested, there is hereby authorized to be appropriated for each fiscal year a sum sufficient to carry out the purposes of this part.

(Emphasis added.)

Pursuant to 42 U.S.C. section 654(3), participating states must “provide for the establishment or designation of a single and separate organizational unit ... within the State to administer the plan” for enforcing child support orders and obtaining support. In Florida, DOR is the agency charged with performing these statutorily-required tasks. See§ 409.2557(1), Fla. Stat.

Subsection 654(4) provides that a participating State must also agree that it will:

(A) provide services relating to the ... modification, or enforcement of child support obligations, as appropriate, under the plan with respect to—

(i) each child for whom (I) assistance is provided under the State program funded under part A of this subchapter, (II) benefits or services for foster care maintenance are provided under the State program funded under part E of this subchapter, (III) medical assistance is provided under the State plan approved under subchapter XIX of this chapter, or (IV) cooperation is required pursuant to section 2015( l )(1) of Title 7, unless, in accordance with paragraph (29), good cause or other exceptions exist;

(ii) any other child, if an individual applies for such services with respect to the child; and

(B) enforce any support obligation established with respect to—

(i) a child with respect to whom the State provides services under the plan; or

(ii) the custodial parent of such a child;....

42 U.S.C. § 654(4) (emphasis added).

DOR contends that the italicized language gives it standing in this case. ³ However, this provision must be read in conjunction with 42 U.S.C. section 666, entitled “Requirement of statutorily prescribed procedures to improve effectiveness of child support enforcement.” (Emphasis added.) Subsection (10)(A) of this statute provides that a state's plan must include:

(i) ... Procedures under which every 3 years (or such shorter cycle as the State may determine), upon the request of either parent or if there is an assignment under part A of this subchapter, the State shall with respect to a support order being enforced under this part, taking into account the best interests of the child involved—

(I) review and, if appropriate, adjust the order in accordance with the guidelines established pursuant to section 667(a) of this title if the amount of the child support award under the order differs from the amount that would be awarded in accordance with the guidelines;[ ⁴]

...

Procedures which provide that any...