Department of Revenue v. Marchines

974 So. 2d 1085, 2007 Fla. App. LEXIS 3848, 2007 WL 777507
CourtDistrict Court of Appeal of Florida
DecidedMarch 16, 2007
DocketNo. 2D05-1269
StatusPublished
Cited by2 cases

This text of 974 So. 2d 1085 (Department of Revenue v. Marchines) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Revenue v. Marchines, 974 So. 2d 1085, 2007 Fla. App. LEXIS 3848, 2007 WL 777507 (Fla. Ct. App. 2007).

Opinion

CASANUEVA, Judge.

The Department of Revenue, which sought to enforce a Pennsylvania judgment, appeals a circuit court order requiring it to pay attorney’s fees to John A. Marchines pursuant to section 57.105, Florida Statutes (2004). We agree that the trial court abused its discretion in so ordering and reverse.

[1087]*1087The Department received a request from the Commonwealth of Pennsylvania, as the initiating state under the Uniform Interstate Family Support Act (UIFSA), chapter 88, Florida Statutes (2004), to register and enforce a Pennsylvania child support arrearage judgment against Mr. Mar-chines for over $34,000. The Department, the responding tribunal as defined in section 88.1021, followed the protocol set out in section 88.3051 and notified Mr. Mar-chines of the registration of the Pennsylvania order and his rights. The Department’s letter to Mr. Machines stated:

Florida Law 88.6061 states that if you wish to contest the validity or enforcement of this registered order, you must request a hearing within 20 days after the date of the mailing of this notice. You may seek to vacate the registration, to assert any defense to an allegation of noncompliance with the registered order, or to contest the remedies being sought or the amount of any alleged arrearages.

Mr. Marchines did exercise his rights and objected to paying the judgment. He ■wrote the Department claiming he was completely disabled, was not working, had no income, and had filed for supplemental security income (SSI).1 Section 409.2561(4), Florida Statutes (2004), provides that anyone receiving SSI is excused from paying support.2 Despite numerous telephone conversations, Mr. Marchines did not provide any documentation from the Social Security Administration to show that he was entitled to or was receiving SSI. Because the Department lacked this documentation, it moved forward with the UIFSA process and scheduled a hearing for which Mr. Marchines hired counsel to represent him. The day of the hearing, Mr. Marchines finally supplied the necessary SSI documentation. Despite his compliance with the Department’s request for this official documentation, the hearing went forward.

Having proof that Mr. Marchines was receiving SSI, the hearing officer correctly determined that the language of section 409.2561(4) precluded the Department from enforcing the child support arrearage order against him. The hearing officer’s factual findings, adopted by the circuit court in its final order, are important to our analysis:

B. On April 1, 2004, a hearing was held on [Mr. Marchines’s] Objection to Registration of Foreign Support Order. At that hearing, [Mr. Marchines], through his assigned counsel, objected to the registration of the Pennsylvania child support arrears order. The objection was premised on the fact that as of January 18, 2002, [Mr. Marchines] was declared by the Social Security Administration to be disabled and currently receives supplemental security income.
C. Based on the fact that [Mr. Mar-chines] currently receives supplemental security income, The Department of Revenue cannot enforce the Pennsylvania’s [sic] child support order. There[1088]*1088fore, [Mr. Marchines’s] objection to the registration of such order should be granted.

The circuit court adopted the hearing officer’s recommended order in toto and rendered it as the final order. No appeal was taken from the court’s order.

Subsequently, Mr. Marchines’s counsel filed a motion for section 57.105 attorney’s fees. The motion claimed that despite the fact that Mr. Marchines informed the Department that he was incapacitated and that section 409.2561(4) provided a complete defense to enforcement of the Pennsylvania judgment against him, the Department persisted in pressing the claim, forcing Mr. Marchines to hire counsel at his own expense. At the circuit court hearing on this motion, the Department argued that it was within its rights to continue the process in order to register the Pennsylvania order although it knew that it could not enforce the order as long as Mr. Marchines was receiving SSI. The Department’s counsel informed the circuit court that the hearing officer who granted Mr. Marchines’s objection refused to register the Pennsylvania order on the theory that the order should not be “on the books” if it could not be enforced.3 According to the Department’s argument, the hearing officer misunderstood that the statute barred only enforcement of the order, not registration.

The circuit court granted the motion and assessed section 57.105 fees against the Department.4 The court reasoned that although the Department was entitled to rely on official documentation and not merely on conversations between Mr. Mar-chines and the case worker about his potential entitlement to or receipt of SSI, the Department never clearly communicated to Mr. Marchines that it had the right to go further and register the order even though it could not enforce it. Thus, the circuit court concluded it was not unreasonable for Mr. Marchines to hire counsel.

Whether it was reasonable for Mr. Marchines to hire counsel, however, is not the dispositive factor in awarding section 57.105 fees against .the Department. “An order awarding attorney’s fees under section 57.105 must include findings by the trial court to support the award.” Goldberg v. Watts, 864 So.2d 59, 60 (Fla. 2d DCA 2003). The trial court’s order against the Department is deficient in this regard, and without such a finding, the award of fees pursuant to section 57.105 is reversible.

More important, however, is the fact that the circuit court incorrectly interpreted the appropriate statutes. This is not a case in which the losing party — the Department — presented a frivolous claim.

The order underlying the attorney’s fee proceedings did not remove the registration of the Pennsylvania order from the record, nor refuse to register it, nor dismiss Pennsylvania’s petition to register and enforce the support order. Rather, the court’s ruling stated that the court (1) granted Mr. Marchines’s objection to the registration of the foreign support order, (2) denied the Department’s request for costs, and (3) retained full and complete jurisdiction of the cause and the parties. Although the court correctly granted Mr. [1089]*1089Marchines’s objection5 based on its factual finding that he was receiving SSI, the court did not vacate the registration.

The court, the hearing officer, Mr. Marchines, and his counsel failed to appreciate the Department’s meritorious position in this matter, i.e., the plain language of chapter 88 contemplates that when Florida, as the responding state, receives a request from an initiating state to register and enforce a support order, registration is, in fact, automatic as long as the Department follows the dictates of chapter 88. And, in this case, the Department did just that.

Section 88.1011(14) defines “register” to mean “to record or file” a support order in the Registry of Foreign Support Orders of the circuit court or other appropriate location.

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Related

Serra v. Brown
192 So. 3d 684 (District Court of Appeal of Florida, 2016)
Kemper v. Department of Revenue ex rel. Kemper
159 So. 3d 303 (District Court of Appeal of Florida, 2015)

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Bluebook (online)
974 So. 2d 1085, 2007 Fla. App. LEXIS 3848, 2007 WL 777507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-revenue-v-marchines-fladistctapp-2007.