Fla. Dep't of Revenue ex rel. Wind v. Cochran

• Decision Date: 10 August 2018
• Docket Number: No. 1D17-4604,1D17-4604
• Parties: FLORIDA DEPARTMENT OF REVENUE, ON BEHALF OF Sharon WIND, Appellant, v. Mark COCHRAN, Appellee.
• Court: Florida District Court of Appeals

253 So.3d 731

FLORIDA DEPARTMENT OF REVENUE, ON BEHALF OF Sharon WIND, Appellant,
v.
Mark COCHRAN, Appellee.

No. 1D17-4604

District Court of Appeal of Florida, First District.

August 10, 2018

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

Mark Cochran, pro se, Appellee.

Wetherell, J.

253 So.3d 733

The Department of Revenue, on behalf of Sharon Wind (the mother), appeals the Final Administrative Paternity and Support Order (FAPSO) establishing Mark Cochran's (the father's) initial child support obligation for the parties' then-one-year-old daughter, H.R.W. (the child). The Department argues that the administrative law judge (ALJ) erred in the FAPSO by giving the father a Smith¹ / Speed² credit for his prospective support of a then-unborn child when calculating his support obligation for the child in this case. For the reasons that follow, we agree and reverse.

Facts

After a DNA test showed that there was a 99.999999999% probability of the father's paternity of the child, the Department served the father with a proposed order establishing his paternity and his child support obligation for the child. See §§ 409.256, 409.2563, Fla. Stat. (2017). The father timely notified the Department that he disagreed with the proposed support obligation, and the case was referred to the Division of Administrative Hearings. The case was assigned to an ALJ and a hearing was held on September 28, 2017.

At the hearing, the mother and father testified about their incomes, expenses, and the daycare costs for the child. The father also testified that he and his then-girlfriend (now fiancée) were expecting the birth of a child in November 2017, and in response to questions from the ALJ,³ the father testified about the girlfriend's income and expenses. Based on this testimony—which the ALJ found "credible" and "certain"—the ALJ included a Smith / Speed credit for the father in the child support guidelines worksheet attached to the FAPSO. The ALJ explained in the FAPSO that "the Smith Speed credit [was] conditioned on the upcoming birth and [the father]'s support of his new biological child" and that "[t]he Smith Speed award and calculation reflects the reality of the upcoming and imminent birth of another child, and will avoid the need for additional modification proceedings."

The father's current support obligation would have been $683 per month without the Smith / Speed credit. However, with the credit, the FAPSO set the father's support obligation at $573 per month, plus an additional $52 per month for retroactive support,⁴ for a total of $625 per month, effective November 1, 2017.⁵

The Department timely appealed the FAPSO to this court.

253 So.3d 734

Analysis

On appeal, the Department argues that it was error for the ALJ to consider the father's then-unborn child when calculating his support obligation for the child in this case. This argument was not raised below, and as a general rule, we will not consider an argument that is raised for the first time on appeal. See Sunset Harbour Condo. Ass'n v. Robbins, 914 So.2d 925, 928 (Fla. 2005) (quoting Tillman v. State , 471 So.2d 32, 35 (Fla. 1985) ); Williams v. Williams , 152 So.3d 702, 704 (Fla. 1st DCA 2014) ; Goodson v. Dep't of Bus. & Prof. Reg. , 978 So.2d 195, 196 (Fla. 1st DCA 2008). However, in this case, there was no reason for the Department to raise this issue at the hearing because (1) the father did not request a Smith / Speed credit for his then-unborn child at any point in the proceedings, and (2) the ALJ took the case under advisement at the conclusion of the hearing without informing the parties of his intent to award such a credit. Then, after the credit appeared for the first time in the FAPSO,⁶ the Department did not have the opportunity to raise the issue with the ALJ because "a motion for rehearing is not authorized in the context of the administrative establishment of child support obligations under section 409.2563, Florida Statutes." Dep't of Revenue v. Vanamburg , 174 So.3d 640, 642 (Fla. 1st DCA 2015). Accordingly, in these circumstances, appellate review is not precluded by the Department's failure to raise the issue below.

The issue of whether a Smith / Speed credit can be awarded for a parent's prospective support of an unborn child presents a pure question of law that we review de novo . See Dep't of Revenue v. Price , 182 So.3d 782, 782 (Fla. 1st DCA 2015) ("We review the trial court's application of the statute to the undisputed facts de novo.").

The Smith / Speed credit is an equitable adjustment to the obligor's child support obligation to...