State of Florida, Department of Revenue Child Support Program Ex Rel. v. Joseph Michael Serwe, III and Aliscia Melissa Serwe

• Court: District Court of Appeal of Florida
• Decided: October 3, 2025
• Docket: 6D2025-0892
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D2025-0892 Lower Tribunal No. 2023-DR-003648 _____________________________

DEPARTMENT OF REVENUE CHILD SUPPORT PROGRAM EX REL.,

Petitioner,

v.

JOSEPH MICHAEL SERWE, III, and ALISCIA MELISSA SERWE,

Respondents, _____________________________

Petition for Writ of Certiorari to the Circuit Court for Orange County. Elaine A. Barbour, Judge.

October 3, 2025

STARGEL, J.

The Department of Revenue (“DOR”) seeks a writ of certiorari quashing the

portion of the March 27, 2025, “Report and Recommendation of the Hearing Officer

and Order Granting Motion for Contempt and Striking Notice of Redirection” that

struck DOR’s notice of redirection of child support payments. 1 However, certiorari

1 This case initiated as an appeal of a nonfinal order, but DOR correctly determined that the case did not qualify under Florida Rule of Appellate Procedure 9.130 and subsequently filed a motion to have this appeal treated as a petition for writ of certiorari. relief is not available since the order states that it is a “Final Order” and purports to

end judicial labor as to the contempt proceeding and DOR’s notice. See Fla. R. App.

P. 9.030(b)(2)(A) (“The certiorari jurisdiction of district courts of appeal may be

sought to review . . . nonfinal orders of lower tribunals other than as prescribed

by rule 9.130 . . . .”) (emphasis added). Therefore, pursuant to rule 9.040(c) and

DOR’s request that we treat the certiorari petition as an appeal should we determine

certiorari relief is unavailable, we treat the petition as a direct appeal from a final

order.

A final judgment of dissolution of marriage was rendered on May 21, 2024,

and contains a provision that the mother shall pay child support directly to the father

for the benefit of the parties’ minor child. On July 29, 2024, DOR filed its notice

pursuant to sections 61.13(1)(d)3., 61.181(1)(a), and 61.1824(1)(a), Florida Statutes

(2024), advising that the mother would be notified to send support payments to the

State Disbursement Unit because Title IV-D services were being provided in this

case. DOR also filed a motion for contempt based on the mother’s default. After

conducting a hearing on the motion, the trial court granted the motion for contempt

but, citing Boukzam v. Jugo, 293 So. 3d 8 (Fla. 4th DCA 2020), sua sponte struck

DOR’s notice, finding that a modification to the way child support payments are

made must be pleaded and deemed to be in the best interest of the child. The trial

court erred in entering the portion of the order striking DOR’s notice. See §

2 61.13(1)(d)3., Fla. Stat. (“Upon notice by the department that it is providing Title

IV-D services in a case with an existing support order, the depository shall transmit

case data through, and set up appropriate payment accounts in, regardless of whether

there is a delinquency, the Clerk of the Court Child Support Enforcement Collection

System as required under s. 61.181(2)(b)1.”); see also § 61.1824(1)(a), Fla. Stat.

Although striking DOR’s notice and requiring the mother to continue to make

child support directly to the father was error, the record before us does not

demonstrate that DOR filed a motion to vacate the order under Florida Family Law

Rule of Procedure 12.490(e)(3). As set forth in Roblero v. Velasquez, 414 So. 3d

463, 463-64 (Fla. 3d DCA 2025), and Fluhart v. Rasmussen, 383 So. 3d 889, 890

(Fla. 5th DCA 2024), the failure to file a motion to vacate the recommended report

adopted by the trial court results in a failure to preserve the claimed error for

appellate review. 2 Accordingly, we are constrained to affirm. See id. at 889-90

(affirming rather than dismissing an appeal based on an appellant’s failure to

preserve an issue by moving to vacate the general magistrate’s recommended final

judgment adopted by the trial court). Our affirmance here is without prejudice to

2 Even if we treated this case as a petition for writ of certiorari, the result would be the same. See, e.g., U. S. Auto. Ass’n v. Bay Area Inj. Rehab Specialists Holdings, Inc., 311 So. 3d 172, 173 (Fla. 2d DCA 2020) (denying a certiorari petition because the issue was not preserved for review).

3 any right DOR may have to file a subsequent notice pursuant to sections

61.13(1)(d)3., 61.181(1)(a), and 61.1824(1)(a).

AFFIRMED.

WOZNIAK and MIZE, JJ., concur.

James Uthmeier, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, of the Office of Attorney General Child Support Enforcement, Tallahassee, for Petitioner.

No Appearance for Respondents, Joseph Michael Serwe, III, and Aliscia Melissa Serwe.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED