An Overview of Department of Revenue Cases under F. S. § 409
Written by: Bonnie Klein Rhoden, Esquire
A Short History
In 2001 the Florida Legislature enacted F.S. 409.2563 as a pilot program starting in Volusia County. This process was designed for the administrative establishment of child support as opposed to the judicial establishment of child support. This program was applied to the entire state of Florida in the year 2002.
During the year 2005 Florida Statute § 409.256 was passed by the legislature and this section authorizes the Department of Revenue to establish paternity for the cases in its administrative hearings. It is important to remember the authority for the Department of Revenue (DOR) to set child support amounts for parents is provided in F.S. § 120.
How The DOR Administrative Process Works to Set Your Child Support
The DOR process follows procedural rules from the Administrative Code, which are different than those followed in judicial proceedings in the Circuit Court (Florida Family Rules of Procedure and Civil Rules of Procedure). The Florida Administrative Code includes the Uniform Rules of Procedure and specifically DOR proceedings fall under Rules 28-106.
The Department of Revenue begins actions by serving upon the parties (the mother and father or guardians of a child) a “Notice of Proceeding to Establish Administrative Support Order” (click to see a sample form) under F.S. 409.2563 section (4).
This process must be started with personal service upon the parties and such service is typically by U.S.P.S. certified mail with return receipt requested and with restricted delivery to the specific addressee. If this type of service fails the rules provide the DOR with alternate methods of service.
Going forward the DOR will send future legal pleadings, notices, Orders, and requests for information via regular U.S.P.S. mail. Such documents are mailed to the last known / last furnished address of the parent. You are required to keep the DOR fully informed of any and all changes of your address. See Florida Statute §409.2564 section (4) for more information on this requirement.
If you are a parent and you object to your case going forward in the administrative system or you want to have your other issues (which fall outside the jurisdiction of DOR such as: custody, visitation, or disputed paternity) there are several options available to ‘opt-out’ of the administrative DOR process and instead litigate all of your issues in one case in the circuit court.
READ YOUR MAIL! The DOR will regularly provide you with detailed instructions of your options on their various pleadings and inside the envelope with legal filings. For example ‘The Notice of Proceedings’ gives you details about your ‘opt out’ options, again refer to §F.S. 409.2564(4) for information on this process. You must pay attention to every page that is provided to you by the DOR.
Here are choices for you to opt out of the DOR Administrative Proceeding:
- A parent, within 20 days from the date of service of the Notice of Commencement, may file an action in Circuit Court and serve DOR in the specific and allowable manner. Service upon DOR must be pursuant to Florida Rules of Judicial Administration 2.516 also applicable is the mail box rule, A case that applies to this process is Johnson v. DOR, 200 So.3d 302 (1st DCA 2016).
- The Respondent (Respondent is the parent that is being pursued by the DOR for child support. It is not necessarily the Father) may, within 20 days from the date of service of the Notice, notify DOR that he or she prefers to proceed in the Circuit Court. If so, an action will be filed in circuit court and you, the Respondent, will be sent a copy of the petition and a waiver of service under F.S. 409.2563.
- The Father, Mother or other party may, at any time, file a case in the Circuit Court requesting the Judge to determine child support obligations. Once the court makes a determination it will issue an Order and that order is considered a superseding order with only prospective application.
It is extremely important to know that if you do not proceed properly and timely on one of the options listed above you have NOT opted out of the Administrative DOR process. Your matter will go forward in the DOR hearing system through and to the entry of a final administrative order which is just as binding as any other court order. You may refer to the case DOR v. Graczyk, 206 So.3d 157 (Fla 1st DCA 2016).
With the Notice of Proceeding to Establish Administrative Support Order the DOR sends you a financial affidavit and a Personal Information form that must both be completed in full. Both must be returned to the DOR; they use this information (and other information available through other sources like your employer’s tax filings) to prepare a proposed Order which is then mailed to you and the other parent. The proposed Order contains the child support amount the DOR is seeking from one or both parents. If the DOR has no income information available Florida Statutes authorize the DOR to use the federal minimum wage amount to calculate your child support obligation amount.
If you do not select to use one of the ‘opt out’ processes your case proceeds directly to the entry of an Order
You can accept the order, you can request informal discussions with DOR, or you can request a hearing with the Division of Administrative Hearings before an administrative law judge.
If You Want a Hearing:
- You have only 20 days from the mailing of the proposed administrative order to request a hearing. Count day one as the day after the date on the correspondence with the proposed order.
- If you do not request a hearing or informal discussions in the proper time that proposed order you received is rendered by the Agency and the parties are mailed a copy of same.
- If you DO request a hearing your case is referred to the Dept. of Administrative Hearings. At that time an administrative law judge is assigned to your matter and he or she will set a date and time to conduct a hearing and enter an order.
- When you receive your Order – the document will outlines in detail the options or ‘remedies’ available to you AFTER the order is issued if you do not agree. The timelines are strict – read everything in your Order and the associated documents! You may request a Judicial Review hearing in the 5th District Court of Appeals (or the 1st DCA). Your Order will also be filed with the Clerk of the Court where, in Brevard County, it is assigned a case number which is used to track your child support.
- This Order has the same effect as a Circuit Court Order and may be enforced against you the same way as any judicial order. The only difference between the administrative order and the circuit court order is that the administrative order may not be enforced by contempt (unless DOR has requested that the Circuit Court enforce the administrative order as a court order.)
- Authority is given to the circuit court to modify an administrative support order and can be done using the process of you requesting and the court entering a superseding order.
If you request a superseding order, here is a tip to help you:
A superseding order must 1) change the amount of support ordered, and 2) decide or ‘adjudicate’ any arrearage that you have accrued under the administrative support order up through the date the request for a superseding order was filed.
- You should request a superseding order by filing a Petition for a Superseding Order. Such a Petition must be served upon the other parent AND the DOR.
- You must request or file your Petition under a NEW case number as the case number assigned by the Clerk of Court is NOT a true court case, it is only assigned to track child support payments and arrearages.
In conclusion, it is very important for you to remember that the Department of Revenue follows the Administrative Rules closely. This means the deadlines are firm and you may not make excuses like, “I didn’t get it” or “I did not know about the hearing” or similar. Those excuses do not work with the DOR. You must read everything provided to you and act quickly. The process is not simple but it can and will effect how much child support you will be ordered to pay OR how much support you will receive, depending upon which party you are in the case.
Contact the experienced attorneys at Mario, Gunde, Peters, Rhoden & Kelley, LLC for a free initial consultation about your child support enforcement or Department of Revenue case. Do not delay, the DOR takes their cases through the process in the least amount of time required by the statutes.
321-631-0506 or email: info@Legal-Eagles.com or use the Contact form at the top of this page.