Dep't of Revenue ex rel. Mcmillan v. Magloire, 1D17-4595
| Decision Date | 20 September 2018 |
| Docket Number | No. 1D17-4595,1D17-4595 |
| Citation | 256 So.3d 230 |
| Parties | DEPARTMENT OF REVENUE, ON BEHALF OF Stephanie Diane MCMILLAN, Appellant, v. McMorris Vincent MAGLOIRE, Appellee. |
| Court | Florida District Court of Appeals |
Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
No appearance for Appellee.
The Department of Revenue challenges a final administrative support order asserting that the Administrative Law Judge (ALJ) erred in calculating child support and retroactive child support. We affirm the ALJ's award of child support, but we reverse the award of retroactive child support.
The Department first argues that the ALJ miscalculated the amount of child support because he failed to credit the mother, Stephanie McMillan, the entire amount she pays for her own health care. However, the record shows that the ALJ credited her with the proper amount for her health and dental insurance; thus, this argument is without merit.
Next, the Department argues that the ALJ used an incorrect amount for the insurance costs of the father, McMorris Magloire, and failed to credit him for the amount he pays for health insurance for himself, his current wife, and his son. But the Department does not explain how this alleged error adversely affects it or the mother. Instead, Magloire, the party affected by the alleged error, did not object to the trial court's calculation of his insurance costs, did not appeal the support order, and did not file any brief in this Court. Thus, because the alleged error was not preserved for review, Magliore would not be entitled to relief even if he had appealed. See Alfred v. Dep't of Revenue , 204 So.3d 583, 585 (Fla. 4th DCA 2016). Moreover, the Department could not raise the unpreserved error on Magliore's behalf. "An appellant cannot ‘concede error’ on behalf of the appellee when that error has never been raised by appellee." Dep't of Revenue v. Lopez , 252 So.3d 823, 43 Fla. Law Weekly D1753, 2018 WL 3638010 (Fla. 1st DCA Aug. 1, 2018) (Winokur, J., concurring). Thus, we reject this concession of error.
Finally, the Department argues that the ALJ erred in calculating Magloire's retroactive child support. Section 61.30(3)(f), Florida Statutes (2017), provides that "[c]ourt-ordered support for other children which is actually paid" is an allowable deduction from gross income for purposes of calculating net income available for child support. Here, the ALJ applied the...
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Alimony and support
...support for other children which is actually paid. [§61.30(3)(f), Fla. Stat.; Dep’t of Revenue on behalf of McMillan v. Magloire, 256 So. 3d 230 (Fla. 1st DCA 2018)(holding that for purposes of calculating father’s retroactive child-support obligation, father was not entitled to deduction f......