by Robert E. Meale
The reader does not get far into Tolstoy’s Anna Karenina before encountering the famous line: “Happy families are all alike; every unhappy family is unhappy in its own way.” Likewise, the reader does not get far into administrative child support cases1 before encountering the thought that Tolstoy’s quote might serve as a coda for the disharmony present, not so much in the families, but in some of the opinions.
Child support can be established or modified2 in circuit court, where the parents themselves can litigate the issue, or the Department of Revenue (DOR) can litigate on behalf of a parent. If there is no circuit court order of support,3 DOR can issue a final administrative support order (FASO) if no hearing is requested on a proposed FASO.4 If a hearing is requested by the father5 or DOR on behalf of the mother,6 an administrative law judge (ALJ) of the Division of Administrative Hearings (DOAH) can conduct a hearing and issue a FASO or a final order denying the proposed FASO.7 Once rendered by DOR, a FASO is enforceable like a circuit court support order,8 although contempt requires a circuit court order adopting the FASO.9
As Florida’s Title IV-D agency, DOR is authorized to establish paternity and child support and modify, enforce, and collect child support.10 Title IV-D refers to Title IV, Part D of the federal Social Security Act.11 Section 409.2563(1)(f) defines a Title IV-D case as one in which DOR is providing “child support services”12 within the scope of Title IV-D, whose coverage provisions are broad.13
A parent seeking Title IV-D services is not required to have received public assistance, although, among parents receiving public assistance, participation in establishing child support may be a condition to continuing to receive public assistance.14
A parent seeking Title IV-D services is not required to be the custodial parent or provide the primary residence of the child. In 2008, the legislature replaced these terms with terms differentiating between the parents based on which parent was seeking support: The parent seeking support is the “person from whom support is not being sought,” and the other parent is “the parent from whom support is being sought.”15 Since 2008, nothing in F.S. §§409.2551-409.25995 has prevented DOR from bringing a child support proceeding on behalf of a parent with whom the child does not primarily reside.16
If the parents do not have a court-approved parenting plan assigning the child to each parent for a specific percentage of nights, the guideline17 amount for DOR’s client is the same, regardless of whether her share of the nights is 80 percent, 50 percent, or 40 percent.18 In DOR ex rel. Sherman v. Daly, 74 So. 3d 165 (Fla. 1st DCA 2011), the parents had agreed at the hearing that the mother had the child 60 percent of the nights and the father had the child 40 percent of the nights, and the ALJ calculated the child support accordingly, even though the parents’ agreed-upon practice had never been incorporated into a court-approved parenting plan. In a holding equally applicable to judicial proceedings,19 the court reversed the FASO and directed the ALJ to apply the guidelines without adjustment for the parents’ timesharing arrangement. A recent case effectively extends Sherman to retroactive child support.20
DOR v. McLeod, 96 So. 3d 443 (Fla. 1st DCA 2012), addresses DOR’s ability to provide Title IV-D services. Without the involvement of DOR, the parents had obtained a child support order, which the mother had twice enforced by contempt. After trying once, unsuccessfully, to have a court modify the order, the father enlisted the help of DOR in his next effort. The circuit judge ruled that DOR lacked standing to represent the father in a proceeding to reduce the child support because neither parent nor the child had received public assistance, and lowering child support would necessarily harm the child. On appeal, the court, invoking “tipsy coachman,” affirmed the trial court without adopting its reasoning, although the appellate opinion’s reasoning is somewhat obscure, even after the issuance of a substitute opinion.21
Perhaps more important than its holding,22 McLeod illustrates DOR’s commitment to establishing and modifying child support orders to ensure adherence to the child support guidelines. When appropriate, DOR will seek a downward modification for the father after establishing support for the mother.23 To ensure that child support orders are and remain24 accurate, DOR recognizes that the best order is not necessarily the one ordering the highest amount, but an order that is realistic and appropriate to the parents and their financial circumstances.25
After undertaking the responsibility to establish child support for a Title IV-D client, DOR issues to both parents a notice of proceeding to establish child support.26 Among other things, this notice provides the father with his only chance to insist that DOR proceed judicially to establish child support,27 provides both parents with an opportunity to prepare and file financial affidavits,28 and establishes the point from which retroactive child support may be calculated.29 After obtaining available financial information,30 DOR determines the father’s child support obligation using the guidelines and issues a proposed FASO.31 The proposed FASO states current and retroactive child support and warns that these amounts will become final, absent a timely request for an administrative hearing.32
The preparation of a proposed FASO and, later, a FASO must strictly adhere to F.S. §§409.2551-409.25995. The single case that best captures this unique characteristic of administrative child support is DOR ex rel. Smith v. Selles, 47 So. 3d 916 (Fla. 1st DCA 2010). The proposed FASO required the father to pay child support to the mother. The father filed a prehearing motion contending that any child support he owed was not due the mother and requesting an order requiring the mother also to pay child support. At the hearing, the parties did not contest that the child resided with the maternal grandmother.
A recurring theme in the case law governing judicial child support is procedural due process in the form of notice.33 The father’s motion provided the mother with ample notice of the new issues of whether the maternal grandmother should be the payee and the mother should be required to pay child support. But DOR’s proposed FASO did not raise either of these issues, nor did DOR amend its proposed FASO34 to raise these issues.
The ALJ unwisely granted the father’s motion. The ALJ entered an order requiring both parents to pay child support,35 as determined by the guidelines, and requiring DOR to redirect the payments from the mother to the maternal grandmother.36
The court reversed the portion of the FASO requiring the mother to pay.37 The problem was not a lack of procedural due process, but a lack of subject matter jurisdiction. Surveying the elaborate statutory framework for the administrative establishment of child support, the court observed that F.S. §409.2563 provides for the establishment of only one payor per administrative case.
With strict adherence to the relevant statutes, the establishment of administrative child support is an uncomplicated process that produces fair, predictable awards, without delay, in pursuit of the policy that children are to be maintained from the resources of their parents to the extent possible.
1 Many of these have been generated by your humble, but busy, author from among the over 3,700 administrative child support cases that he has adjudicated — several more than once.
2 References to establishment will generally include modification.
3 Fla. Stat. §409.2563(2)(a). At anytime, including after the rendering of a FASO, either party may obtain a superseding circuit court support order, but the judicial order operates prospectively. Fla. Stat. §409.2563(2)(d) and (10)(c).
4 Fla. Stat. §409.2563(7)(c).
5 References to the “father” mean the “parent from whom support is being sought” and to the mother mean the “parent from whom support is not being sought.” See note 15.
6 Fla. Stat. §409.2563(6) authorizes the father or DOR to request a hearing. If the mother objects to a proposed FASO, DOR ordinarily requests a hearing on her behalf.
7 Fla. Stat. §409.2563(7)(a).
8 Fla. Stat. §409.2563(5)(c)6. This is why an ALJ cannot issue a temporary support order. Rendering requires a FASO, but the issuance of a FASO marks the end of DOAH’s jurisdiction. This limitation is consistent with the “hear-them-and-close-them” approach that governs child support cases at DOAH where, in a single day, usually not more than four weeks after transmittal of the cases to DOAH from DOR, an ALJ may hear — and prepare and issue written final orders in — as many as 16 establishment cases.
9 Fla. Stat. §§409.2563(9)(d)1 and (10)(b).
10 Fla. Stat. §409.2557(1) and (2).
11 42 U.S.C. §§661-669b. A state’s receipt of a federal block grant for temporary assistance to needy families (TANF) is conditioned upon the state’s operation of a child support enforcement program meeting the requirements of Title IV-D. 42 U.S.C. §602(a)(2).
12 “‘Child support services’ includes any civil, criminal, or administrative action taken by the Title IV-D program to determine paternity, [or] establish, modify, enforce, or collect support.” Fla. Stat. §409.2554(13).
13 A Title IV-D agency must “provide services relating to the establishment of paternity or the establishment, modification, or enforcement of child support obligations . . . to . . . any . . . child, if an individual applies for such services with respect to the child[.]” 42 U.S.C. §654(4)(A)(ii). See 42 U.S.C. §654(4)(B) for the Title IV-D agency’s responsibilities in enforcing child support orders.
14 The failure of such persons to cooperate in establishing, modifying, or enforcing child support may result in the loss of TANF and Supplemental Nutrition Assistance Program benefits (f/k/a food stamps), although not Medicaid for the children. Fla. Stat. §§409.2572, 409.2554(8); F.A.C. R. 12E-1.008.
15 Laws of Fla. Ch. 2008-61, §21.
16 Although DOR’s proposed FASO form alleges that “the child . . . resides with [the Title IV-D client] most of the time,” this allegation appears to be a vestige of pre-2008 statutory terminology.
17 All references to a guideline or the guidelines are to Fla. Stat. §61.30, which “presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding for such support or in a proceeding for modification of an existing order for such support, whether the proceeding arises under this or another chapter.” Fla. Stat. §61.30(1)(a). Experience teaches that this presumption is a very strong one.
18 The range of outcomes is vast. Under the guidelines, if the monthly income of the father is $5,000 and the mother is $3,500, the father owes $678 per month without any timesharing adjustment, $125 per month if he has the child 50 percent of the nights, and nothing if he has the child 60 percent of the nights.
19 The effect of Sherman is lessened in a judicial proceeding. A circuit judge can order a parenting plan at the time of establishing support; an ALJ lacks this authority. Compare Fla. Stat. §61.13(2) with §409.2563(2)(b).
20 In DOR ex rel. Mash v. Ingram, 112 So. 3d 169 (Fla. 1st DCA 2013), the court prohibited an in-kind credit to reduce retroactive support to what the parent would have owed if the parties had had a court-approved parenting plan. The effect of Mash is more far-reaching than Sherman because the circuit judge presumably cannot order a parenting plan and relate it back to the start of the retroactive period.
21 The opinion strains to find meaning in statutory distinctions between DOR’s authority to establish and modify child support orders and to enforce them and relies on a statute requiring DOR to periodically review and modify child support orders to restrict the scope of another statute broadly authorizing DOR to provide child support services.
22 McLeod arguably stands for no more than that DOR may not accept as a Title IV-D client a noncustodial parent seeking a downward modification if neither parent nor the child has been on public assistance, the parties obtained the establishment order without DOR’s services, and the custodial parent has enforced the order without DOR’s services.
23 See, e.g., DOR v. Collingwood, 43 So. 3d 952 (Fla. 1st DCA 2010) (per curiam).
24 The federal statute makes explicit what is implicit in the state statute governing DOR’s duty to periodically review existing orders and, if indicated, seek modifications: Modifications are driven by the “best interests of the child.” 42 U.S.C. §666(a)(10)(A)(i). Cf. Fla. Stat. §409.2564(11)(a), which requires DOR to modify child support orders whenever “appropriate under the …guidelines.”
25 Just as an inadequate order deprives the child of support, so does an excessive order, sometimes more dramatically when the father ceases all payments. See, e.g., Dep’t of Health & Human Servs., Office of Child Support Enforcement (OCSE), Issuing Realistic and Enforceable Support Orders Bench Card: Child Support and the Judiciary (May 8, 2012), available at http://www.acf.hhs.gov/programs/css/resource/issuing-realistic-and-enforceable-support-orders-bench-card (“Realistic, enforceable orders that will yield stable support payments for children must be based on the actual ability of the noncustodial parent to pay support. Low-income noncustodial parents with inappropriate support orders that represent a high percentage of their reported earnings result in the child not receiving adequate or stable support and the accumulation of arrears that are not collectible.”). See also OCSE, Establishing Realistic Support Orders: Child Support and the Judiciary Bench Card (Nov. 11, 2011), available at http://www.acf.hhs.gov/programs/css/resource/establishing-support-orders (“It is important to a child that judicial officials establish a realistic, appropriate order based on the noncustodial parent’s real ability to pay support so that: the parent can make, and the child(ren) can depend on, regular child support payments[;] an arrearage does not accrue[;] and noncustodial parents are more likely to remain in the formal economy.”).
26 Fla. Stat. §409.2563(4).
27 Fla. Stat. §409.2563(2)(f) and (4)(m). The father must file his request in writing within 20 days of receipt of the notice of proceeding and execute a waiver of service within 10 days of receipt of DOR’s circuit court petition. Alternatively, within the same 20 days, the father may file in circuit court a petition seeking the establishment of child support. Fla. Stat. §409.2563(4)(n).
28 Fla. Stat. §409.2563(4)(c).
29 Fla. Stat. §409.2563(1)(a) defines a FASO to include retroactive support. Fla. Stat. §409.2563(1)(g) defines retroactive support by reference to §61.30(17). Fla. Stat. §61.30(17) authorizes retroactive support “not to exceed a period of 24 months preceding the filing of the petition.” The service of the notice of proceeding functions as the petition for marking the point from which to calculate administrative retroactive support. DOR has paternity-establishment responsibilities. Fla. Stat. §409.256. Fla. Stat. §409.256(4) authorizes DOR to issue a separate notice of proceeding to establish paternity or a single notice of proceeding to establish paternity and support. If DOR issues separate notices, as is its practice, the retroactive period runs from the notice issued in the paternity proceeding. DOR ex rel. Sorto v. LaGree, 106 So. 3d 534 (Fla. 1st DCA 2013).
30 Ordinarily, discovery does not take place before a DOAH hearing to establish child support. However, in addition to completed financial affidavits, DOR often has access to useful information to establish the earnings of employees. Fla. Stat. §409.2576(3) requires employers of new employees to file with DOR New Hire Reporting forms, and F.A.C. R. 73B-10.025 requires employers to file with DOR quarterly reports on RT-6 (formerly UCT-6) forms with respect to reemployment (formerly unemployment compensation) tax.
31 Fla. Stat. §409.2563(5). If “there is a lack of sufficient reliable information concerning a parent’s actual earnings for a current or past period,” DOR enjoys the advantage of a statutory “presumption” that the parent could earn federal minimum wage, presumably over a 40-hour week. Fla. Stat. §409.2563(5)(a). This presumption is available to the ALJ under §409.2563(6).
32 Fla. Stat. §409.2563(5)(c) and (6). In practice, if there is any information in the file or at the hearing concerning a parent’s earnings, the higher Florida minimum wage would be used, if the other parent proves adequate grounds for imputing income at minimum wage.
33 For example, a trial court cannot modify upward a support obligation when the only pleading is for a downward modification. Dey v. Dey, 838 So.2d 626 (Fla. 1st DCA 2003) (per curiam). Nor can a trial court modify downward a support obligation without notice to the parties or a pleading seeking this relief. Dep’t of Health & Rehab. Servs. v. Cushing, 632 So. 2d 285 (Fla. 2d DCA 1994). Accord Harrison v. Persighetti, 858 So. 2d 1226 (Fla. 4th DCA 2003) (per curiam).
34 Fla. Stat. §409.2563(5)(d).
35 Ordering both parties to pay support is authorized by §61.13(1)(a), for a circuit judge, not an ALJ.
36 The redirecting of payments is authorized by Fla. Stat. §409.2558(8).
37 Citing Fla. Stat. §409.2558(8), the opinion affirmed the portion of the FASO that changed payees. The opinion does not discuss the effect, if any, of the absence of compliance with the procedures of §409.2558(8)(c), including notice, for a change of payees in that case or a proposed order redirecting payment and the necessity of an existing support order prior to an order redirecting payments. Fla. Stat. §409.2558(8)(d)-(f). In retrospect, the better practice would have been to deny the proposed FASO on the ground that, because the child did not reside at all with the mother, a child support order with the mother as the payee would not serve the statutory policy of “ensuring that children are maintained from the resources of their parents to the extent possible.” Fla. Stat. §409.2557(2). Given the 2008 legislation eliminating the requirement that DOR proceed on behalf of custodial parents (see note 15) an interesting question would be whether the proposed FASO could have been denied if the mother had the child at least one night per month or whether, given Sherman, the mother would be entitled to a FASO awarding her full support without an adjustment for the fact that the child resided with her only, say, one night per month.
Robert E. Meale is an administrative law judge with the Division of Administrative Hearings. The views contained in this column are his own and do not represent the views of the Division of Administrative Hearings.
This column is submitted on behalf of the Administrative Law Section, Amy Wilmot Schrader, chair, and Stephen Emmanuel, editor.