Dep't of Revenue v. Reyes, 1D15–707.

• Decision Date: 31 December 2015
• Docket Number: No. 1D15–707.,1D15–707.
• Parties: DEPARTMENT OF REVENUE, Appellant, v. Francis C. REYES and James Reyes–Otero, Appellees.
• Court: Florida District Court of Appeals

181 So.3d 1270

DEPARTMENT OF REVENUE, Appellant,

v.Francis C. REYES and James Reyes–Otero, Appellees.

No. 1D15–707.

District Court of Appeal of Florida, First District.

Dec. 31, 2015.

Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.

No Appearance for Appellees.

RAY, J.

The Florida Department of Revenue raises two issues in this appeal of a Final Administrative Support Order determining the child support obligation of Appellee James Reyes–Otero (the father). In the first issue, the Department argues that the administrative law judge (ALJ) erred by concluding that he lacked authority to enter a support order exceeding the amounts set forth in the Department's Proposed Final Administrative Support Order based on new information developed at an evidentiary hearing that would substantially increase the father's child support obligation under the statutory child support guidelines. In the second issue, the Department argues that the Final Administrative Support Order is not supported by competent, substantial evidence. We resolve both issues by concluding that the ALJ was required to establish the father's child support obligation based on the evidence presented at the hearing. By limiting the father's child support obligation to the amounts contained in the proposed order, notwithstanding the evidence presented, the Final Administrative Support Order is contrary to Florida law and not supported by competent, substantial evidence. Accordingly, we vacate the order and remand for further proceedings consistent with this opinion.

I.

On behalf of Francis C. Reyes (the mother), the Department served the father with a Notice of Proceeding to Establish Administrative Support Order, which explained that the Department had initiated a proceeding to establish an administrative support order that may require him to pay child support and other expenses for his child with the mother. Included with the notice were a blank Financial Affidavit and a blank Parent Information Form. Both parents returned the required Financial Affidavits and Parent Information Forms to the Department. Although the father included information about his income, he did not fully complete the financial affidavit. In addition to the information gathered from the Financial Affidavits and Parent Information Forms, the Department obtained wage information from a state database regarding the parents' incomes. Using the information available to it, the Department completed the child support guidelines worksheets for the relevant time periods and a Proposed Final Administrative Support Order, which determined that the father's current child support guideline obligation was $482.40 per month and that he owed $9,156.37 in retroactive child support as of the date he was served with initial notice of the proceeding.

The Proposed Final Administrative Support Order was served on the father. It included a "Respondent's Notice of Rights," which provided that he could request a hearing before the Division of Administrative Hearings (DOAH) if he disagreed with the proposed order. The father timely requested an administrative hearing. The Department acknowledged the request, and DOAH issued a Notice of Hearing. In pertinent part, the Notice of Hearing advised the parties that the final order issued after the hearing "may change the amount of child support, both current and retroactive, that was in the proposed order." The notice further advised that the amounts would "depend on the evidence at the hearing."

Both parents appeared at the hearing and provided testimony regarding their current employment, income, and health care or insurance costs. The father's testimony revealed that the income amounts reported in the state-wage information for part of the period utilized in the Proposed Final Administrative Support Order were based on the income he had been receiving while in training at his job. His income had substantially increased after he completed training.

Based on the evidence and testimony presented and the statutory child support guidelines, the ALJ determined that the father's child support obligation should be nearly double the amount contained in the Proposed Administrative Support Order. The higher amount was a result of the new information regarding the father's income. The ALJ also acknowledged that the father's share of the uncovered medical expenses for the child would have risen from sixty-seven percent to seventy-one percent accordingly.

Notwithstanding the evidence presented at the hearing, the ALJ concluded that he was limited in the amount that he could order as a support obligation by the amounts listed in the Proposed Final Administrative Support Order. The Department objected, pointing out that the current income of the parties, established during the hearing, created a different support obligation amount under the support guidelines. The ALJ overruled the objection, reiterating his opinion that the father's support obligation was "capped" by the amount designated in the proposed order, namely $482, and that the father's percentage of responsibility for uncovered medical expenses for the child would be based on the percentage included in the proposed order.

The ALJ entered a Final Administrative Support Order consistent with his oral findings. This timely appeal followed.

II.

Section 409.2563, Florida Statutes (2015), governs the administrative establishment of child support obligations in cases where the child is receiving public assistance or one parent has sought the Department's help in establishing support. To commence a proceeding under this statute, the Department must serve a Notice of Proceeding to Establish Administrative Support Order and blank financial affidavit on the parent from whom support is being sought. § 409.2563(4), Fla. Stat. (2015). Among other things, the notice must state that "the [D]epartment intends to establish an administrative support order as defined in [section 409.2563 ]." § 409.2563(4)(b).

The Department is then required to "calculate [a] parent's child support obligation under the child support guidelines schedule as provided by s[ection] 61.30, based on any timely financial affidavits received and other information available to the department." § 409.2563(5)(a). The parent's earning capacity is presumed to equal the federal minimum wage for the period of support when there is not "sufficient reliable information concerning [that] parent's actual earnings for a current or past period." Id. The Department must send copies of the proposed final administrative support order to the parents along with a completed child support worksheet, any financial affidavits that were completed, and a notice of rights outlining, among other things, the method and time frame the parent has to request an administrative hearing. § 409.2563(5)(b), (c).

If, after serving the proposed administrative support order but before a final administrative support order is rendered, the Department receives additional information that makes it necessary to amend the proposed administrative support order, it must do so and send the parents copies of the amended proposed order along with a completed child support worksheet, any financial affidavits that were completed, and the same notice of rights previously provided. § 409.2563(5)(d).

If the parent from whom support is being sought files a timely request for hearing or the Department determines that an evidentiary hearing is appropriate, the Department must refer the proceeding to DOAH. § 409.2563(6). In that context, the ALJ is required to "consider all available and admissible information and any presumptions that apply as provided by paragraph (5)(a)." Id. The ALJ's determination on support constitutes final agency action by the Department. § 409.2563(7)(a).

III.

In the instant case, after the ALJ conducted a de novo hearing to determine the father's child support obligation (including current child support, share of uncovered...